Gujarat High Court
Habibbhai Vajirbhai Chaudhari vs Maganbhai Arjanbhai Desai And Anr. on 14 February, 1995
Equivalent citations: (1995)1GLR871
JUDGMENT R.K. Abichandani, J.
1. The petitioner who was initially declared as elected as Sarpanch of the Dashavada Gram Panchayat by the Returning Officer on 24th February, 1992 and suffered a set back in the Election petition filed by respondent No. 1 challenges the order dated 14th December, 1994 passed by the learned Civil Judge (J.D), Sidhpur in Election Petition No. 1 of 1992, by which the respondent No. 1 was declared elected as the Sarpanch of the Panchayat on the ground that he had secured higher number of votes than the petitioner.
2. The election of Sarpanch of the said Panchayat was held on 23rd February, 1992 and the petitioner was declared as elected by the respondent No. 2 having secured 608 votes as against 592 votes secured by the respondent No. 1. At mat time 16 ballot papers were rejected and one ballot paper could not be traced. The respondent No. 1 thereupon filed the Election Petition under Section 24 of the Gujarat Panchayats Act, 1961 on various grounds challenging election of the petitioner. It was alleged in the petition that some voters had voted twice and that undue pressure was brought upon some voters, and that the votes were also cast in the name of dead persons. It was alleged that these irregularities were caused at the instance of the petitioner. It was also alleged that there was a difference of only 16 votes and though the respondent No. 1 had requested for recounting the votes, the respondent No. 2 had rejected that request. The allegations made by the respondent No. 1 in the Election Petition were controverted by the petitioner in his reply dated 23rd March, 1992.
3. On 26th February, 1992, an application was made by the respondent No. 1 at Ex. 7 praying for recounting the votes through a Court Commissioner. Thereupon by order dated 16th April, 1992 the learned Judge after hearing the parties, granted the request for recounting of votes and appointed a Court Commissioner for the purpose, who was required to count the votes in the presence of the parties and their learned Advocates and to place the disputed ballot papers before the learned Judge for his decision. It appears that on 4th April, 1994 the petitioner made an application Ex. 65 requesting that the work of recounting should not be done without allowing evidence to be led. It was also prayed that the order appointing Commissioner for the purpose should be recalled. The learned Judge made an order on this application on the same day, rejecting the application on the ground that the reasons given in the application were applicable to the stage of final decision making and that there was no reason to halt the proceedings undertaken by the Commissioner. Ultimately, the Commissioner submitted his report to the learned Judge, a copy of which is placed on record. By this report the Commissioner placed before the learned Judge separately the ballot papers which were objected to by the parties alongwith the ballot papers which were not disputed. As per this report, out of the undisputed ballot papers, respondent No. 1 (symbol of Horse) had secured 529 votes while the petitioner (symbol of Scales) had secured 467 votes. There were 220 disputed ballot papers. The learned Judge took into account this report and proceeded to scrutinise 220 disputed ballot papers. From these disputed votes the learned Judge found that 33 were validly cast in favour of the respondent No. 1 and 67 were validly cast in favour of the petitioner. The remaining 120 ballot papers were rejected as void and from the record it appears that out of these 120 invalid ballot papers, 104 votes were declared void on the ground that the Presiding Officer had not put his signature on the reverse of these ballot papers. The remaining 16 ballot papers were held to be invalid for want of seals or having double seals or having a signature and no seal. The learned Judge rejected the ballot papers for want of signature of the Presiding Officer on their reverse on the ground that there was violation of the statutory requirement contained in Rule 22(i) of the Gujarat Gram and Nagar Panchayats Election Rules, 1962.
4. The learned Counsel appearing for the petitioner contended that the learned Judge could not have rejected 104 ballot papers on the ground that they were not signed on the back of the foil by the Presiding Officer. This he argued on the strength of Section 24(2A) of the said Act. He also argued that Rule 32 of the said Rules does not contemplate rejection of a ballot paper on the ground of absence of signature of the Presiding Officer. It was contended that the counting of votes contemplated by Section 24(5)(b) was a judicial function and could not have been entrusted to a Commissioner by the learned Judge. It was also argued that having regard to the allegations made in the Election Petition, the learned Judge ought to have allowed the application made by the petitioner at Ex. 65 permitting the parties to lead evidence.
5. The Counsel for the respondent No. 1 on the other hand argued that if signature of a Presiding Officer is not there on the back of the foil of a ballot paper, that amounted to a clear violation of the mandatory provision contained in Rule 22(i) of the said Rules and a presumption should be raised that such ballot paper was a spurious one. Reliance was placed in support of this contention on decision of the Supreme Court in the case of Ambika Prasad Dubey v. District Magistrate, Allahabad, . It was also contended that Rule 32 of the said Rules which enumerated grounds for rejection of a ballot paper was not exhaustive and even de-hors Rule 32, the Returning Officer had a discretion to reject ballot papers on other valid grounds such as non-compliance of a mandate contained in Rule 22(i). It was finally contended that the learned Judge had not committed any jurisdictional error and therefore, this Court should not, in a writ petition, interfere with the declaration of election of respondent No. 1 as Sarpanch which was based on the factual data.
6. The learned Judge in proceeding to dispose of the matter merely in context of the provisions of Section 24(5)(b) of the said Act and on the basis of a recount under that provision, has committed a basic error of overlooking the contents of the Election Petition. There was a clear allegation in the Election Petition that the respondent No. 1 had unduly influenced certain voters and had caused double voting to be done and had also caused voting to be done in the name of dead persons. Without even examining as to whether the contents of the Election Petition amounted to allegations of corrupt practice, the learned Judge straightway proceeded to appoint a Commissioner and decided the matter finally on scrutiny of the disputed ballot papers. In the application Ex. 65 dated 4-4-1994, there was a request made for recording of evidence and that request was casually dealt with by observing that the stage for recording the evidence was yet to follow. The learned Judge did not come to any finding that on the facts it was not necessary to record evidence and simply forgot his order dated 4th April, 1994 passed below Ex. 65 in which the learned Judge had observed that the reasons mentioned in that application were germane to the final disposal of the matter. Before proceeding to deal with the matter under the provisions of Section 24(5)(b) of the said Act, it is necessary for the Court to ascertain as to whether Clause (a) of Sub-section (5) of Section 24 is attracted or not. The Court can proceed under Clause (b) of Sub-section (5) of Section 24 only if Clause (a) of Sub-section (5) is not applicable in the matter. The learned Judge, therefore, committed an error in exercise of his jurisdiction in proceeding with the matter under Clause (b) of Sub-section (5) of Section 24 without coming to a finding that Clause (a) of Sub-section (5) of Section 24 did not apply in the case.
7. The learned Judge rejected 120 ballot papers of which admittedly 104 were rejected on the ground that the Presiding Officer had not put his signature on the back of the foil of these ballot papers. Under Rule 22(i) of the said Rules, it is provided that before a ballot paper is issued to a voter, it shall be signed on the back of the foil by the Presiding Officer. This is an important procedural mandate given in the process of recording of votes and the Presiding Officer is required to scrupulously follow this mandate. An omission by Presiding Officer in this regard should be viewed strictly because it has the effect of putting a vote under cloud. It is not known as to whether any action was taken against the Presiding Officer who failed in his duty of putting a signature on the back of the foil of these 104 ballot papers.
8. Rule 32(1) of the said Rules enumerates grounds for rejection of ballot papers. The said provision does not contain omission of the signature of the Presiding Officer as required by Rule 22(i) as a ground for rejecting the ballot paper as void. However, it contains in Clause (e) a ground namely - that spurious ballot paper shall be rejected as void and in context of this ground, the question of the effect of absence of signature of a Presiding Officer on the back of the foil of ballot paper can be considered by the Court. In other words, while deciding whether a ballot paper is spurious or not, absence of signature of a Presiding Officer on the back of its foil is an irrelevant (sic. a relevant) factor though it is not an independent ground on which a ballot paper can straightway be rejected as void. If the Court comes to the conclusion that omission of signature on the back of the foil of a ballot paper is only a mistake or a failure on the part of the Presiding Officer, then such omission cannot be relied upon for holding that the ballot paper is a spurious one under Clause (e) of Rule 32(1). Therefore, the learned Judge must apply his mind to ascertain whether such omission was only a mistake or failure on the part of the Presiding Officer, while examining whether a ballot paper is a spurious one or not.
9. It is significant to note that even in Rule 56 of the Conduct of Election Rules, 1961 framed under the Representation of People Act, 1951 wherein one of the grounds for rejection of a ballot paper enumerated for rejection of ballot paper under Sub-section (2)(h) is that of absence of mark or signature which it should have borne under the provisions of Sub-rule (1) of Rule 38 of those Rules, the proviso to Rule 56(2) clearly provides that where the Returning Officer is satisfied that any such defect has been caused by any mistake or failure on the part of a Presiding Officer, the ballot paper shall not be rejected merely on the ground of such defect. Therefore, even where omission of such mark or signature which is required to be made by a Presiding Officer on the ballot paper is made a ground for rejecting the ballot paper, the legislature has taken care to see that if such defects are caused by some mistake or failure on the part of a Presiding Officer, the ballot paper shall not be rejected merely on the ground of such defect.
10. The rejection of a ballot paper as void is a serious matter and dealt with specifically under Rule 32(1) of the said Rules. The subject of rejecting a ballot paper is entirely dealt with by the said Rule which enumerates grounds for such rejection. It, therefore, does not stand to reason that the Returning Officer should have discretion to reject a ballot paper on any ground not enumerated under Rule 32(1) as was sought to be suggested on behalf of the respondent No. 1. In other words, the grounds for rejection of ballot papers enumerated in Rule 32(1) are exhaustive and there is no discretion left in the Returning Officer to reject a ballot paper on any ground which does not fall under any of these enumerated grounds. The learned Judge has straightway rejected these 104 ballot papers merely on the ground that they did not bear the signature of the Presiding Officer on the back of the foil, without applying his mind to the aspect as to whether these ballot papers were spurious or not. For ascertaining whether the ballot papers were spurious, the learned Judge ought to have applied his mind to all die relevant material and omission of the signature of a Presiding Officer was only one of the factors which he was required to consider. It was also necessary, in the process, for die learned Judge to have examined whether the omission of the signature of the Presiding Officer in these 104 ballot papers was only a mistake or failure on the part of the Presiding Officer. It becomes, therefore, necessary to remand the matter for an appropriate decision in the light of the above legal position.
11. The decision of the Supreme Court in Ambika Prasad Dubey v. District Magistrate, Allahabad (supra) on which reliance was palced on behalf of the respondent No. 1 cannot help the respondent No. 1 because in that decision there was a finding that upon scrutiny it was found that 41 ballot papers had actually not been issued by the Polling Officer.
12. Section 24(2) required the Judge to make an enquiry as he deems necessary and pass an order confirming or amending the declared result, or setting the election aside. For the purposes of such enquiry, the Judge may exercise all the powers of a Civil Court. Thus, he is free to record evidence or to act as per various provisions of the Civil Procedure Code including Order 26, Rule 10B under which a Commissioner may be appointed by him for performance of a ministerial act.
13. As regards the appointment of Commissioner for the purpose of doing the counting work, it may be stated that under Section 24(5)(b), the Judge cannot entrust the work of scrutiny and computation of the votes recorded in favour of the candidates to a Commissioner appointed by the Court. The Judge must discharge the function of scrutiny and computation of the votes himself. However, the ministerial work of counting votes can be entrusted to a Commissioner appointed by the Court. Such Commissioner can separate undisputed votes for which the parties and their Advocates do not object and place his report regarding disputed and undisputed number of votes before the Judge who must apply his mind to the report and himself undertake the work of scrutiny and computation of the votes which are disputed. The Commissioner can do only the ministerial act of separating undisputed votes, and the disputed votes in presence of the concerned parties and their Advocates.
14. The scrutiny and computation of disputed votes being a judicial function, it is required to be exercised by the Judge himself and cannot be delegated to the Commissioner in face of the provisions contained in Section 24(5)(b) of the said Act. In the present case, the Judge himself has taken into account the report of the Commissioner and considered the disputed votes and the Commissioner was entrusted only the ministerial act which was permissible.
15. Under the above circumstances, the impugned order dated 14th December, 1994 in Election Petition No. 1 of 1992 passed by the learned Civil Judge (J.D.), Sidhpur declaring the respondent No. 1 as elected for the post of Sarpanch of the Dashavada Gram Panchayat is hereby set aside and the matter is remanded for deciding the Election Petition afresh in accordance with law and in light of the observations made in this judgment. Rule made absolute accordingly with no order as to costs.