Bombay High Court
Sau. Amrapali Jeevan Gawai vs Sau. Vaishali Sumedh Shirsat And Others on 3 August, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3702 OF 2016
Sau. Amrapali Jeevan Gawai,
Aged 27 years, Occupation - Labourer,
R/o Khirpuri (Ward No.3),
Tq. Balapur, District Akola. .... PETITIONER
VERSUS
1) Sau. Vaishali Sumedh Shirsat,
Aged 27 years, Occupation - Labourer,
R/o Khirpuri (Ward No.3),
Tq. Balapur, District - Akola.
2) V.R. Tayade,
Returning Officer, Gram-Panchayat
Khirpuri (Bk.), Development Officer,
S.D.O. Office Campus, Balapur,
Tq. Balapur, District Akola.
3) Mukunda Shankar Sirsat,
Aged 41 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
4) Sadhna Samrat Sirsat,
Aged 27 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
5) Seemabai Suresh Kawalkar,
Aged 41 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
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6) Sunanda Devdhar Chincholkar,
Aged 55 years, Occupation - Labourer,
R/o (Ward No.2), Khirpuri (Bk.),
Tq. Balapur, District Akola.
7) Secretary,
Gram-Panchayat, Khirpuri,
Tq. Balapur, District Akola. .... RESPONDENTS
______________________________________________________________
Shri S.D. Chopde, Advocate for the petitioner,
Shri R.L. Khapre, Advocate for the respondent No.1.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 14-07-2016
DATE OF PRONOUNCING THE JUDGMENT : 03-08-2016
JUDGMENT :
Heard Shri S.D. Chopde, Advocate for the petitioner and Shri R.L. Khapre, Advocate for the respondent No.1.
2. The present respondent No.1 filed petition under Section 15 of the Maharashtra Village Panchayats Act, 1958 (hereinafter referred to as the "Act of 1958") in the Court of Civil Judge challenging the decision of the Returning Officer declaring the present petitioner as successful candidate at the election held for the seat of Member of Gram-Panchayat on 06-08-2015. In the election petition it ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 3 wp3702.16 is prayed that it be declared that the present respondent No.1 is the successful candidate as declared earlier by the Returning Officer.
In these proceedings, the present petitioner had filed an application (Exhibit No.90) praying that the electronic voting machine be called for verification and counting of votes. The learned trial Judge has rejected this application by the impugned order.
The lis is between the present petitioner and the present respondent No.1. The respondent Nos.2 to 7 are formal parties.
Considering the nature of dispute, the petition is taken up for final disposal without issuing notices to the respondent Nos.2 to 7.
3. The elections of Gram-Panchayat Khirpuri, Tahsil -
Balapur, District - Akola are held on 04-08-2015. The present petitioner and the respondent Nos.1 and 3 to 6 contested from Ward No.3. In this Ward, out of the three seats, one was reserved for Scheduled Caste Woman Candidate and one was reserved for Other Backward Class Woman Candidate. The present petitioner and the present respondent No.1 contested for the seat reserved for Scheduled Caste Woman Candidate.
4. According to the claim in the election petition, the present ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 4 wp3702.16 respondent No.1 and the present petitioner got equal votes and therefore, lots were drawn and the present respondent No.1 was declared elected on 06-08-2015 at 11.00 a.m. The present respondent No.1 has pleaded that on 06-08-2015 at about 3.30 p.m. the present petitioner made hue and cry claiming that she is declared elected on the seat reserved for Scheduled Caste Woman Category and therefore, the present respondent No.1 approached the Returning Officer who informed that the present petitioner was declared elected. According to the present respondent No.1, on 06-08-2015, she filed an application for obtaining certified copies of the proceedings book, she got the certified copies on 10-08-2015 and then after noticing that the procedure adopted by the Returning Officer was illegal and the Returning Officer and the present petitioner played fraud and committed mischief, the present respondent No.1 lodged complaint with the police station and then filed the election petition.
5. In these proceedings, the present petitioner filed the application (Exhibit No.90) contending that the present petitioner got 220 votes and the present respondent No.1 got 200 votes, however, the Returning Officer had earlier wrongly recorded that the present respondent No.1 and the present petitioner got 208 votes each. The ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 5 wp3702.16 present petitioner prayed that the electronic voting machines which are in the custody of District Administration be called and the votes polled in favour of the respective candidates be verified. The learned trial Judge has rejected this application by the impugned order.
6. Shri S.D. Chopde, learned Advocate for the petitioner has referred to the provisions of Section 15(2) and Section 15(5)(b) of the Act of 1958 and has submitted that the Judge dealing with the petition under Section 15 of the Act of 1958 is conferred with all the powers of Civil Court and the Judge has the power to scrutinize and compute the votes polled in favour of each candidate. It is submitted that the power to compute and scrutinise the votes polled in favour of candidates enables the Judge to call the electronic voting machines and verify the votes polled in favour of the candidates. To support the submission, the learned Advocate for the petitioner has relied on the judgment given by the Division Bench of this Court in the case of Digamber Pandurang Sawant vs. Ahmed Appa Khedekar reported in 1970 Mh.L.J. 456. It is argued that the learned trial Judge has not properly exercised his jurisdiction conferred by Section 15(5)(b) of the Act of 1958 and has rejected the application observing that the petitioner has not made any complaint of similar nature at the relevant stage, and ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 6 wp3702.16 that the evidence recorded shows that the procedure was properly followed at the time of conducting the election. The petitioner prayed that the impugned order be set aside, the application (Exhibit No.90) filed by the present petitioner in the proceedings before the learned trial Judge be allowed and the learned trial Judge be directed to call the electronic voting machine and verify the votes polled in favour of the petitioner and the respondent No.1.
7. Shri R.L. Khapre, Advocate for the respondent No.1 has submitted that the claim in the election petition filed before the trial Judge is that the present respondent No.1 was declared elected on 06-08-2015 at 11.00 a.m. but surprisingly the Returning Officer has modified the result at 3.00 p.m. and has declared the present petitioner elected which is illegal. It is submitted that the Returning Officer has no power and authority to modify the result once it is declared. It is argued that as per Section 15(2) of the Act of 1958, the Judge dealing with the petition under Section 15 of the Act of 1958 can exercise all the powers exercisable by the civil Court including the power to entertain and decide the counter-claim and if the petitioner wanted to challenge the result declared by the Returning Officer earlier (at 11-00 a.m.), the present petitioner should have filed ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 7 wp3702.16 counter-claim challenging the earlier decision of the Returning Officer by which the present respondent No.1 was declared elected. It is argued that the present petitioner has not filed the counter-claim and has not challenged the earlier decision of the Returning Officer declaring the present respondent No.1 elected and therefore, the claim made by the present petitioner in the application (Exhibit No.90) is not maintainable and the application is rightly rejected. To support the submissions, the learned Advocate for the respondent No.1 has relied on the following judgments :
(i) Judgment given by the Hon'ble Supreme Court in the case of Jabar Singh vs. Genda Lal reported in AIR 1964 SC 1200(1).
(ii) Judgment given by the Hon'ble Supreme Court in the case of Ram Autar Singh Bhadauria vs. Ram Gopal Singh and others reported in AIR 1975 SC 2182(1).
(iii) Judgment given by the Hon'ble Supreme Court in the case of P. Malai Chami vs. M. Andi Ambalam and others reported in AIR 1973 SC 2077.
It is submitted that the impugned order is proper and it cannot be said that the learned trial Judge has committed any error of ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 8 wp3702.16 jurisdiction. It is prayed that the petition be dismissed with costs.
8. After hearing the learned Advocates for the respective parties, I find that the point which arises for consideration is :
"Whether the Judge trying the petition under Section 15 of the Act of 1958 has the power to call for the electronic voting machine and scrutinize and compute the votes polled in favour of the candidates ?"
The learned trial Judge has not adverted to this point and has rejected the application (Exhibit No.90) filed by the petitioner on the ground that the present petitioner had not complained during the course of the election procedure before the Returning Officer that the error was committed by the Returning Officer earlier and that there was confusion in the serial numbers of the candidates shown in the electronic voting machine because of which the votes polled in favour of Other Backward Class Woman Candidate were treated as votes polled in favour of the Scheduled Caste Woman Candidate and vice-
versa. The learned trial Judge has not considered the provisions of Section 15(5)(b) of the Act of 1958.
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9. The submission made on behalf of the present respondent No.1, relying on the provisions of Section 15(2) of the Act of 1958 that the grievance of the present petitioner cannot be considered as he has not filed any counter-claim, cannot be accepted. The judgments relied upon on behalf of the respondent No.1 are also not of any assistance to her.
The judgments relied upon on behalf of the present respondent No.1 are in respect of proceedings under the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951") in which there is specific provision i.e. Section 97 which disentitles the returned candidate or any other party to the election petition to give evidence to prove that the election of the petitioner in election petition who seeks declaration that he is elected, would have been void, if the petitioner in election petition does not give notice to the High Court within fourteen days from the date of commencement of trial disclosing his intention to do so and gives security and further security referred to in Section 117 and Section 118 of the Act of 1951.
Section 97 of the Act of 1951 reads as follows :
"97. Recrimination when seat claimed - (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 :::
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Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of (commencement of the trial), given notice to (the High Court) of his intention to do so and has also given the security and the further security referred to in sections 117 and 118, respectively.
(2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner."
Thus, in an election petition under Section 83 of the Act of 1951, if the petitioner challenges the election of the returned candidate and seeks declaration that the petitioner is duly elected, the returned candidate or any other party to the election petition may give evidence to prove that the election of such candidate i.e. the petitioner in election petition would have been void if he had been the returned candidate and a petition would have been presented calling in question his election. However, the proviso below sub-section (1) of Section 97 of the Act of 1951 disentitles the returned candidate or such other party to give such evidence unless the returned candidate or such other party gives notice to the High Court within fourteen days from the date of commencement of the trial, that the returned candidate or such ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 11 wp3702.16 other party intends to prove that the election of the petitioner in election petition would have been void. The proviso below sub-section (1) of Section 97 of the Act of 1951 also makes it mandatory for the returned candidate or for such other party who intends to prove that the election of the petitioner in the election petition would have been void, to give security and further security referred to in Section 117 and Section 118 of the Act of 1951. Sub-section (2) of Section 97 of the Act of 1951 lays down that the notice which is referred to in sub-
section (1) of Section 97 of the Act of 1951 shall be accompanied by the statement and the particulars required by Section 83 of the Act of 1951 and the notice has to be signed and verified in the like manner.
The judgments relied upon on behalf of the present respondent No.1 are based on the provisions of Section 97 of the Act of 1951.
10. Section 15(5)(b) of the Act of 1958 confers powers on the Judge dealing with the petition under Section 15 of the Act of 1958 to scrutinize and compute the votes polled in favour of each candidate.
The proposition laid down in the judgments relied upon on behalf of the petitioner cannot be applied to the proceedings under Section 15 of the Act of 1958 as the provisions under the two Acts are different.
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11. Section 15(5)(a) of the Act of 1958 lays down that if the Judge, after holding enquiry, finds that a candidate at the election has committed a corrupt practice within the meaning of Section 15(6) of the Act of 1958, the Judge shall declare the candidate disqualified for the purpose of that election and for fresh election as may be held under Section 15(2) of the Act of 1958 and shall set aside the election of such candidate if he has been elected.
Section 15(5)(b) of the Act of 1958 provides that in a case to which Clause (a) of sub-section (5) of Section 15 of the Act of 1958 does not apply and if the validity of an election is in dispute between two or more candidates, the Judge shall after scrutiny and computation of the votes polled in favour of each candidate declare the candidate who is found to have the greatest number of valid votes in his favour as elected. The first proviso below clause (b) of sub-section (5) of Section 15 of the Act of 1958 provides that while computing the votes under clause (b), if the Judge finds any corrupt practice was committed by any person in giving or obtaining it, the vote shall not be reckoned as valid. The second proviso below clause (b) of sub-section (5) of Section 15 of the Act of 1958 provides that after computation, if it is found that an equality of votes exists between any candidates, one additional vote shall be added to the total number of valid votes found ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 13 wp3702.16 to have been received in favour of such candidate who is selected by draw of lot in the presence of the Judge in such manner as he may determine.
The provisions of Section 15(5)(b) of the Act of 1958 confer power on the Judge dealing with the petition under Section 15 of the Act of 1958 to scrutinize and compute the votes polled in favour of each candidate, if the challenge in the election petition is not on the allegations of corrupt practice within the meaning of Section 15(6) of the Act of 1958. In the present case, the present respondent No.1 has not alleged that the present petitioner has committed any corrupt practice within the meaning of Section 15(6) of the Act of 1958. In my view, looking to the nature of dispute, it was obligatory for the learned trial Judge to exercise the powers under Section 15(5)(b) of the Act of 1958 and to call the electronic voting machine/machines. The judgment given in the case of Digamber Pandurang Sawant (Supra) recognizes the power of Judge to scrutinize the votes to decide the validity or otherwise of the votes.
12. In view of the above, the following order is passed :
(i) The impugned order is set aside.
(ii) The application (Exhibit No.90) filed by the present
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petitioner is allowed.
(iii) The learned trial Judge shall call the electronic voting
machine/machines and take further steps in the matter according to law.
(iv) The election petition shall be decided till 26-08-2016.
(v) Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE adgokar ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 ::: 15 wp3702.16 CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."
Uploaded by : P.M. Adgokar. Uploaded on : 04-08-2016.
P.A. ::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 :::