Gujarat High Court
Gujariben Bhagabhai Bumbhadiya vs Election Officer, Dalpura Gram ... on 30 September, 2025
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025
undefined
Reserved On : 22/09/2025
Pronounced On : 30/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.4309 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR.JUSTICE L. S. PIRZADASd/-
=============================================
Approved for Reporting Yes No
✔
=============================================
GUJARIBEN BHAGABHAI BUMBHADIYA
Versus
ELECTION OFFICER, DALPURA GRAM PANCHAYAT AND DEPUTY
MAMLATDAR (E-DHARA) & ORS.
=============================================
Appearance:
MR ANKIT Y BACHANI(5424) for the Petitioner(s) No. 1
MR PANKAJ S CHAUDHARY(3269) for the Respondent(s) No. 2
MS SHRUTI R. DHRUVE, AGP for the Respondent(s) No. 1,3,4,5,6,7
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. Rule. Learned advocates appear and waive service of notice of Rule on behalf of the respective respondents.
2. The present writ petition has been filed by the petitioner, who contested the election for the post of Sarpanch of Dalpura Group Gram Panchayat, Taluka Danta, reserved for Scheduled Tribe candidates. The respondent-State Government issued a Notification on 29.11.2021 under the provisions of the Gujarat Panchayat Election Rules, 1994 (hereinafter referred to as "the Page 1 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined Rules of 1994"), more particularly under Rule 9(1) and (2), notifying the election for the post of Sarpanch of Dalpura Gram Panchayat, scheduled to be held on 19.12.2021. The petitioner, as well as the respondent Nos.2 to 7, submitted their nomination forms to contest the election for the reserved seat. Accordingly, the election was conducted on 19.12.2021.
3. It is the case of the petitioner that the Election Officer committed serious irregularities in the counting and recounting of votes, which necessitated her to file an Election Petition under Section 31 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as "the Act of 1993"), before the Court of the learned Principal Senior Civil Judge, Danta, District:
Palanpur. Election Petition No.1 of 2021 came to be heard and was ultimately dismissed on 31.01.2024, leading to the filing of the captioned writ petition.
4. Learned advocate Mr.Ankit Bachani, appearing for the petitioner, has submitted that through the Election Petition, the petitioner specifically challenged the action of the Returning Officer in violating the provisions of Rules 60 and 61 of the Rules of 1994. It is submitted that the counting of votes took place on 21.12.2021 at 9:00 a.m. in Room No.16. After the completion of three rounds of counting, both the petitioner and the respondent No.2 secured 343 votes each, as initially declared by the respondent No.1-Returning Officer. Since the petitioner noticed that several ballot papers bearing a valid stamp in her favour were wrongly declared invalid, she immediately applied for a recount. It is further submitted that the Election Officer failed to complete the necessary Page 2 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined formalities, including the filling up of Form 27 as mandated under Rule 60(7) of the Rules of 1994, and thereafter, in a subsequent declaration, the petitioner was shown to have secured 263 votes, whereas the respondent No.2 was shown to have secured 278 votes. Relying on Rule 61(4)(b) of the Rules of 1994, learned advocate Mr. Bachani, appearing for the petitioner, has submitted that the Election Officer acted in violation of statutory provisions and, therefore, the election of the respondent No.2 ought to have been quashed and set aside by the Tribunal, which has not been done.
5. Learned advocate Mr. Bachani has further submitted that although the Tribunal held that the provisions of Rule 27A of the Rules of 1994 were violated, inasmuch as no result was recorded by the Election Officer, it nevertheless failed to set aside the election of the respondent No.2. Such an approach, according to the petitioner, amounts to a clear illegality on the part of the Tribunal. It is also submitted that immediately after the recount, the petitioner again submitted an application to the Election Officer requesting another recount, as discrepancies were noticed even in the recounting process. However, the Election Officer did not consider such an application. Thus, it is urged that the election of the respondent No.2, as well as the order passed by the Tribunal rejecting the Election Petition, are required to be quashed and set aside.
6. In response to the aforesaid submissions, learned advocate Mr. Pankaj Chaudhari, appearing for the respondent No.2, has submitted that before the Tribunal itself, the Page 3 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined petitioner admitted that she was not aware of the number of votes she had secured. It is pointed out that the petitioner admitted to having obtained 263 votes as against the respondent No.2, who secured 278 votes. It is submitted that except for the documentary evidence produced at Exh.33, no cogent evidence was adduced before the Tribunal to establish that the Election Officer had committed any illegality or perversity. It is submitted that the Election Petition was rightly rejected.
7. We have heard the learned advocates appearing for the respective parties at length and have also perused the original records of Election Petition No.1 of 2021.
8. The fact that both the petitioner and the respondent No.2 contested the election for the post of Sarpanch of Dalpura Gram Panchayat held on 19.12.2021 is undisputed. The grievance of the petitioner in Election Petition No.1 of 2021 was that the Election Officer illegally declared the respondent No.2 as "ELECTED" by showing her to have secured 278 votes as against 263 votes in favour of the petitioner. In the memo of the Election Petition, more particularly in paragraph No.3, the petitioner has categorically averred that after three rounds of counting, both she and the respondent No.2 had secured equal votes of 343 each, upon which she immediately applied for a recount.
9. We have perused the application for recounting dated 21.12.2021 submitted at 6:05 p.m. to the Returning Officer. Notably, in this application, there is no reference whatsoever Page 4 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined to any violation of Rule 27A of the Rules of 1994, nor is there any allegation of corrupt or illegal practice by the Returning Officer. There is no whisper in the application filed by the petitioner that there was any illegality committed in the counting the votes. In fact, the only reason assigned for seeking a recount is the securing of an equal number of votes by the petitioner and the respondent No.2. Rule 60 of the Rules of 1994 regulates the procedure of counting of votes. A detailed procedure is prescribed, including the rejection of ballot papers. Neither the petitioner nor her agent raised any grievance about any violation of the procedure adopted by the Returning Officer. For the first time in her Election Petition, it was alleged that the Returning Officer had invalidated the votes that were in her favour. Thus, this appears to be an afterthought and runs contrary to the reason assigned in her application dated 21.12.2021. After the recounting was conducted, the Returning Officer duly filled in the prescribed Form as required under Rule 27A of the Rules of 1994, reflecting that the petitioner had secured 263 votes while the respondent No.2 had secured 278 votes.
10. It further appears from the record that after the declaration of the recounting result, the petitioner once again submitted a second application for recounting at 8:20:15 p.m. on the same evening. In that application, she alleged that both she and the respondent No.2 had initially secured 343 votes each, and in the subsequent recount, she obtained 349 votes, whereas the respondent No.2 obtained 337 votes, yet the respondent No.2 was declared elected, which, according to Page 5 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined her, was illegal. She therefore requested a further recount of all ballot papers. However, in her deposition before the Tribunal, more particularly in her cross-examination at Exh.29, the petitioner admitted that she does not remember the total number of votes counted or the number of votes rejected as invalid by the Election Officer. She also admitted that her application for recounting was rejected and denied that she had secured 263 votes while the respondent No.2 had secured 278 votes. At the same time, she admitted that the Election Officer had not adopted any corrupt practice or committed any illegality. She has further admitted that she had no proof to substantiate her claim that she had obtained 349 votes in the recounting. She also admitted that neither she nor her agent had raised any objection at the time the votes were declared invalid.
11. Thus, from the evidence led by the petitioner before the Tribunal, it clearly emerges that no irregularity, illegality, or perversity can be attributed to the Election Officer in the conduct of counting or recounting. The final result was duly recorded in Form No.27 in compliance with Rule 60(7) of the Rules of 1994. The Tribunal, therefore, precisely concluded that no case was made out to interfere with the election of the respondent No.2.
12. We may, at this stage, refer to the provisions of Rule 60(7) of the Rules of 1994, which reads thus:
"Rule 60(7):
After the completion of counting the Returning Officer shall record in the result sheet in Form 27 the total number of votes polled by each candidate, and the total number of votes cast in favour of 'NOTA', and announce the same."Page 6 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025
NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined
13. A plain reading of the above provision makes it abundantly clear that the Returning Officer, after completion of the process of counting, is under a statutory obligation to record the total number of votes polled by each candidate, as well as the total votes cast for "NOTA," in the prescribed Form 27, and thereafter to formally announce the result.
14. We may also refer to Rule 61 of the Rules of 1994, which pertains to the recount of votes and reads as under:
"61. Recount of votes.
(1) After an announcement of the total number of votes polled by a candidate has been made under sub- rule (7) of rule 60, a candidate, or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount.
(2) On such an application being made the returning officer shall decide the matter and may allow the application whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(3) Every decision of the returning officer under sub-rule (2) shall be in writing and contain reason therefore.
(4) If the returning officer decide under sub-rule (2) to allow a recount of the votes either wholly or in part, he shall -
(a) do the recounting in accordance with rule 58 or, as the case may be, 60:
(b) amend the result sheet in Form 27 to the extent necessary after such recount; and
(c) announce the amendment so made by him.
(5) After the total number of votes polled by each candidate has been announced under sub-rule (7) of rule 60 or sub-rule (4) the returning officer shall complete and sign the result sheet in Form 27 and no application for a recount shall be entertained thereafter:Page 7 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025
NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1)."
15. Thus, as per the aforesaid provisions, there are two distinct stages for recording the result of the election in the result sheet in Form 27. The first stage arises under Rule 60(7) of the Rules of 1994, which is required to be undertaken immediately after completion of the counting of votes. The second stage arises under Rule 61(5) of the Rules of 1994. If the details of the result are entered in Form 27 under Rule 60(7) and thereafter a recount is ordered, the Returning Officer, in terms of Rule 61(4)(b), is required to amend the result sheet in Form 27 to the extent necessary and announce the amended result and record reasons for the amendment. Rule 61(5), however, clearly stipulates that once the total number of votes polled by each candidate has been announced either under Rule 60(7) or Rule 61(4), the Returning Officer shall complete and sign the result sheet in Form 27, and thereafter, no application for a recount shall be entertained.
16. Accordingly, the scheme of the Rules contemplates that once a recount application has been entertained and the recount is duly carried out, the declaration of the Returning Officer recorded in Form 27 becomes final, and there is no enabling provision under the Rules to entertain any further application for recounting.
17. In the present case, it appears that when the earlier result showing 343 votes each for the petitioner and the Page 8 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined respondent No.2 was declared, the petitioner immediately demanded a recount on the ground of an equal number of votes. Consequently, Form 27 was not filled up at that stage by the Returning Officer, but was filled in only after the recounting of votes, in accordance with the provisions of Rule 61(5). This was an error committed by him. After the declaration of equal votes of 343, the Returning Officer was supposed to comply with the provision of Rule 60(7) and fill the result sheet in Form No.27. Since he did not do so, he could not have amended the result as required under Rule 61(4)(b).
18. However, whether the election result can be set aside on this lacuna still remains to be examined. In this regard, we may refer to the provisions of Section 31 of the Act of 1993, which governs the determination of the validity of elections, inquiry by the Judge, and the procedure to be followed. The Section 31(4) of the Act of 1993 reads thus:
"Section 31(4):
If the validity of any election is brought in question only on the ground of any error made by the officer or officers charged with carrying out the rules made under section 274 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election.
Explanation: The expression "error" in this sub-section does not include any breach of or omission to carry out or any non- compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has been materially affected. "
19. The provisions of sub-section (4) of Section 31 of the Act of 1993, stipulate that the Judge shall not set aside an election, if it is questioned only on the ground of any error by the officer or officers charged with carrying out the rules framed under Page 9 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined Section 274, or on account of any irregularity or infirmity not corruptly caused. The Explanation thereto clarifies that the expression "error" does not include any breach of, or omission to carry out, or non-compliance with the provisions of the Act or the Rules made thereunder whereby the result of the election has been materially affected. The expression "materially affected", has to be construed in a very restricted sense. Any error or omission of the provisions of the Act or the Rules which significantly or drastically affects the result of the election cannot be ignored or disregarded. Thus, the error or omission which directly impacts the validity and outcome of the result of the election "significantly", has to be mandatorily taken into consideration, and cannot be ignored in any circumstances. Thus, the error of not recording the equal number of votes under Rule 60(7) cannot be said to the error or omission of such a magnitude which affects the validity of the election more particularly in wake of the fact that petitioner has miserably failed to prove any corrupt practice adopted by the Returning Officer, coupled with the fact that the Returning Officer has recorded the result in From No.27 as per the provision of Rule 61(5) and has signed the same. Thus, the election of the respondent no.2 cannot be set aside in view of the provisions of Section 31(4) of the Act of 1993, since there is no corrupt practice alleged against the Returning Officer. In the impugned judgment, the learned Judge has recorded that after the initial counting, since there was no specific column in Form 26A for entering the result after recounting under Rule 61 of the Rules of 1994, the Election Officer filled up the necessary details in Form 27 at the stage Page 10 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025 NEUTRAL CITATION C/SCA/4309/2024 CAV JUDGMENT DATED: 30/09/2025 undefined of Rule 61(5) of the Rules of 1994. At the best, this may amount to an irregularity, but certainly not a fatal defect. We are in complete agreement with the findings of the learned Judge.
20. The petitioner has neither alleged, nor proved, any mala fide intention on the part of the Returning Officer. The mere non-filling of the equal votes of 343 in Form 27 at the stage of Rule 60(7) cannot by itself invalidate the election, particularly since immediately thereafter recounting was undertaken upon the application of the petitioner, and the Returning Officer filled the requisite details in Form 27 at the appropriate stage.
21. Thus, invoking Section 31(4) read with the Explanation, the election of the respondent No.2 cannot be set aside merely on account of such procedural error, unless it is proved that the error was corruptly caused and materially affected the result. In absence of any evidence to that effect, we are not inclined to interfere with the impugned judgment of the Election Tribunal or to set aside the election of the respondent No.2, who has been duly elected as Sarpanch of Dalpura Gram Panchayat, Taluka Danta.
22. The petition fails and is accordingly dismissed. Rule is discharged.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(L. S. PIRZADA, J) MAHESH/02 Page 11 of 11 Uploaded by MAHESH OMPRAKASH BHATI(HC01086) on Tue Sep 30 2025 Downloaded on : Wed Oct 01 22:26:24 IST 2025