Gujarat High Court
Ravindra Natubhai Patel vs Satishbhai Parshotambhai Patel on 22 April, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FOR RECALL) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2024
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2025
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of
2023
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and Sd/-
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
=========================================
Approved for Reporting Yes No
✔
==========================================
RAVINDRA NATUBHAI PATEL
Versus
SATISHBHAI PARSHOTAMBHAI PATEL & ORS.
==========================================
Appearance:
MR. CHITRAJEET UPADHYAYA, ADVOCATE WITH
MR. KIRTAN H MISTRY(10012) for the Petitioner(s) No. 1
MS. SUMAN MOTLA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 2,3
MR BM MANGUKIYA(437) for the Respondent(s) No. 1
MR RUSHABH R SHAH(5314) for the Respondent(s) No. 1
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 1
==========================================
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NEUTRAL CITATION
C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025
undefined
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 22/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI) [1] By way of this petition, the petitioner challenges the order passed by the Election Tribunal being Judicial Magistrate First Class, Pardi, dated 02.05.2022 below Exhibit -1 in Election Application No.2 of 2022, whereby learned Tribunal allowed the Election Application, quashed and set aside the declaration of result by the Returning Officer prior thereto, declaring respondent No.1 herein as Sarpanch of Dungri Gram Panchayat by 6 votes and Election Officer was directed to handover sealed ballot boxes to concerned Office in presence of Court Commissioner.
[2] As per the case of the petitioner, he was elected as Sarpanch of Dungri Gram Panchayat, Taluka - Pardi, District - Valsad on 21.12.2021 and therefore, respondent No.1 herein preferred the Election Application before the Election Tribunal, as aforesaid.
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NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined [2.1] It is the case of the petitioner that 4 candidates have filed nomination forms for the aforesaid post of Sarpanch, voting took place on 19.12.2021 and counting of votes was undertaken on 21.12.2021. It is submitted that process of counting of votes had been undertaken in the presence of both the candidates and their agents. At the end of process of counting, petitioner, being polled highest number of votes, had been declared as elected candidate for the post of Sarpanch of Dungri Gram Panchayat. Final result came to be notified in Part-II duly signed by Returning Officer dated 21.12.2021 and in the said document, number of votes polled in favour of candidates mentioned round wise, on an application for recounting requested by respondent No.1 herein as also the votes polled for NOTA and on total recount, petitioner being polled by highest number of votes, was declared to be elected Sarpanch of Dungri Gram Panchayat. [2.2] However, being aggrieved by the declaration of the result, respondent No.1 herein, as contended by the learned advocate for the petitioner, has filed the aforesaid Election Application before the Election Tribunal on 03.01.2022. Respondent No.1 herein vide Exhibit -6 application requested Page 3 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined the Court for appointment of Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short 'the Code'), directing him to seize and produce the documents and material as mentioned in the application from the official respondents and to draw a panchnama thereof and produce before the Tribunal. The said application was submitted to the Court on the very same day when this election application came to be filed, which was ordered to be fixed for hearing on 24.01.2022. The said application Exhibit -6 came to be allowed partly by the learned Election Tribunal vide order dated 14.02.2022, ordering the Commissioner to carry out scrutiny of all the documents and recounting of all the votes and submit a detailed report on 25.02.2022. One Court Assistant Mr. M.M.Patel, was appointed as Court Commissioner and the applicant of the election application was directed to deposit Rs.10,000/- towards the cost of the Commissioner. On deposit of the same, Court Commissioner was to undertake that exercise. Since the order below Exhibit - 6 application runs beyond the scope of application itself, as there was no prayer for recounting be ordered, the said order was requested to be stayed vide Page 4 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined application Exhibit -17 dated 19.02.2022 filed by the petitioner herein before the Election Tribunal. The application Exhibit -17 came to be rejected vide order dated 19.02.2022 by the learned Election Tribunal on the ground that it is given with a view to prolong the proceedings and the application does not bear the signature of the advocate and it has not been submitted on oath / verification before the Court.
[2.3] It is the contention of the petitioner that application Exhibit - 6 given by respondent No.1 herein before the Election Tribunal was with a prayer to seize and produce the election material on record before the Court and to keep it in safe custody, the order is passed thereof, that too, without hearing the petitioner. However, pursuant thereto, the Court Commissioner appointed, vide notice dated 17.02.2022 and directed the parties to remain present at 10:00 a.m. on 21.02.2022 at Mamlatdar Office, Pardi with two respectable persons to act as panch witnesses and if they fail to do so, the Court Commissioner shall perform his duties as Court Commissioner in their absence. The said notice of Court Commissioner came to be served upon the petitioner on Page 5 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined 18.02.2022. The Court Commissioner vide mark 19/1, which is at page 93 of the petition, drawn the panchnama in presence of two panch witnesses, seizing and collecting the election material as also carrying out recounting of votes, wherein it is stated that the petitioner has polled 1675 votes and respondent No.1 herein has polled 1674 votes. The Court Commissioner vide mark 19/2 presented his report along with the panchnama drawn.
[2.4] Thereafter, vide Exhibit -21 application on that very day, i.e. 25.02.2025, respondent No.1 herein gave an application that the scrutiny and computation of the votes recorded in favour of each candidate has to be undertaken by the Court and as it has been done by the Court Commissioner, it is against the provisions made under Section 31 of the Gujarat Panchayats Act, 1993 (for short 'the Act, 1993'). Therefore, it was requested to undertake that scrutiny and computation of votes by the Court itself in presence of parties or advocates of the parties. [2.5] The learned Tribunal appointed advocate Ms. Hina K. Patel as Court Commissioner, since Mr. M.M.Solanki requested the Tribunal to relieve him from the duty of Court Page 6 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined Commissioner.
[2.6] Petitioner herein filed reply to an application Exhibit- 21 filed by respondent No.1 herein praying for undertaking scrutiny and computation of votes by itself. The Returning Officer had also submitted his detailed reply on 28.04.2022, producing the relevant documents before the Tribunal. [2.7] The petitioner appears to have filed Exhibit -30 application requesting to undertake scrutiny of votes in relation to stamp to be applied, mark to be made on the ballot papers and whether visible or not, should be considered while undertaking the exercise. However, the said application came to be rejected by the Tribunal as it has been given after about an hour of recounting started before the Tribunal. The entire exercise was done in the presence of parties, their advocates, panch, Returning Officer as also Mamlatdar and it came to be rejected.
[2.8] While examining the records of the petition, it appears that parties have vide different applications, requested the Court to ensure compliance of the provisions of 'the Act, 1993' and the Gujarat Panchayat Election Rules (hereinafter Page 7 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined referred to as "the Rules") and undertake scrutiny and computation of votes in accordance with law. Though, those other materials and other applications are not of that much importance so far as decision in this petition is concerned, thorough detailed examination on application and orders thereon is required. However, it would be relevant to note that the Court Commissioner appointed vide Exhibit - 42 submitted report in detail, duly signed by the panch witnesses, recording therein that all ballot papers have been counted and it was shown to the parties, panchas, their advocates and in presence of Returning Officer, those ballot papers were shown to them. It is also mentioned that all ballot papers were seen by the Tribunal as well and thereafter recounting is performed. [3] Mr. Chitrajeet Upadhyaya, learned advocate for Mr. Kirtan H. Mistry, learned advocate for the petitioner vehemently submitted that on filing of the election application before the Court under Section 31 of 'the Act, 1993', without undertaking any inquiry into the application, straightaway by appointing Court Commissioner, as requested by respondent No.1 herein, recounting was ordered by the Court, that too, to be undertaken Page 8 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined by the Court Commissioner, which is illegal. He has further submitted that without examining any witness, for the purpose of inquiry, into the election petition, no recounting could have been ordered by the Election Tribunal. He has further submitted that sub-section (3) of Section 31 of 'the Act, 1993' envisages inquiry on filing of election application to be held by the Judge and after such inquiry, learned Judge can pass an order, either confirming or declaring result or setting the election aside. [3.1] Drawing attention of the Court to the said provisions, he has further submitted that for the purpose of said inquiry, the Judge is empowered to exercise all the powers of a Civil Court and his decision is held to be conclusive. Therefore, he has submitted that learned Election Tribunal was not empowered to undertake the exercise of recounting, that too, once ordered to be performed by Court Commissioner and thereafter undertaken by himself, without an inquiry being conducted as envisaged.
[3.2] Since in the said application, there is no question of any corrupt practice being committed by any candidate, within Page 9 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined the meaning of sub-section (8) of Section 31 of 'the Act, 1993', scrutiny and computation of votes shall have to be undertaken by the learned Judge as Election Tribunal only upon conducting an inquiry and not before that.
[3.3] Taking us to the annexures stated and annexed with the petition, he has submitted that from the date of filing of the application, instead of conducting an inquiry as contemplated under sub-section (3) of Section 31 of 'the Act, 1993', straightaway Tribunal directed recounting of votes through the Court Commissioner, which is again illegal and thereafter it has been undertaken by the Court itself is also illegal exercise of powers, as envisaged under clause (a) and (b) of sub-section (7) of Section 31 of 'the Act, 1993'. According to his submission, clause (a) of sub-section (7) of Section 31 of 'the Act, 1993', would apply in case any corrupt practice being alleged and brought by way of inquiry before the Court, then the action of disqualification of a candidate and the ultimate outcome of the election application is stated therein. Merely because "holding of such inquiry" is not stated in clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', it cannot be said that inquiry is Page 10 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined dispensed with when a prayer is made for recounting of votes. [3.4] He has further submitted that the Court of law cannot be selected only for the purpose of recounting of votes, asking it to act as an Election Officer. However, that power has to be exercised by the Election Tribunal only and only after conducting inquiry into the assertion made in the application and appropriate proof thereof, that too, having been satisfied, the Judge may undertake scrutiny and computation of the votes recorded in favour of each candidate and thereafter, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. According to his submission, in no case, such exercise of scrutiny and computation of votes to be undertaken by the learned Judge without conducting an inquiry and some material in the form of evidence, is led before the Court.
[3.5] Mr. Chitrajeet Upadhyaya, learned advocate for Mr. Kirtan Mistry, learned advocate for the petitioner, in support of his submission, places reliance on the decision of the Supreme Court in the case of Udey Chand Vs. Surat Singh & Anr. reported in (2009) 10 SCC 170, wherein similar such Page 11 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined provisions of Haryana Panchayati Raj Act, 1994, in similar set of circumstance having been applied, held that before Election Tribunal can permit scrutiny of ballot papers and order recount, two basic requirements viz. (i) the election petition seeking recount of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary.
Therefore, he has submitted that the impugned order passed by the learned Tribunal without holding an inquiry and evidence being adduced before it in respect of sufficient averments in the application and which is culminated into an evidence, no order for scrutiny and counting of votes could have been undertaken by the learned Tribunal.
[3.6] Relying on the decision of the Division Bench of this Court in the case of Meghaben Datteshkumar Amin Vs. The State Election Commission, reported in (2019) 1 GLR 404, Page 12 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined more particularly para 8 & 9 thereof, he has submitted that the Division Bench of this Court has conclusively held that an inquiry as envisaged under sub-section (3) of Section 31 of 'the Act, 1993' must precede recount of votes to arrive at such a conclusion. As recorded in para - 9, not for mere asking but upon inquiry envisaged under Section 31 (3) of 'the Act, 1993', if reasonable grounds are made out, recount should be undertaken. After considering the provisions of 'the Act, 1993' and "the Rules" as also sub-sections (7) & (8) of Section 31 of 'the Act, 1993' thereof, this Court, according to submission of learned counsel for the petitioner, concluded that inquiry as envisaged under Section 31(3) of 'the Act, 1993', is a must before ordering recount and undertaking exercise of scrutiny and computation of votes.
[3.7] He has also relied on a decision in the case of Mayurkumar Shivrambhai Vasava Vs. Bipinbhai Champakbhai Vasava rendered in Special Civil Application No.17022 of 2022, and submitted that as held in the said decision, Tribunal conducting recounting of votes prior to leading of evidence is objectionable and could not be permitted. Page 13 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025
NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined Therefore, he has submitted that this petition be admitted and allowed.
[4] As against that, Mr. B. M. Mangukiya, learned advocate for respondent No.1 herein, vehemently submitted that considering clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', it requires no holding of any inquiry for the purpose of ordering recount, which empowers the Tribunal to undertake scrutiny and computation of votes. Therefore, according to his submission, there is nothing wrong in recounting being ordered and undertaken by the Tribunal without conducting any inquiry and leading any evidence. [4.1] He has further submitted that conscious absence of word "holding of such inquiry", which is found in clause (a) of sub-section (7) of Section 31 and not found in clause (b) of sub- section (7) of Section 31 of 'the Act, 1993', is the legislative intent wherein validity of election is in dispute between two or more candidates, in any case to which clause (a) does not apply, the learned Tribunal to undertake scrutiny as also computation of the votes i.e. recounting of votes.
[4.1.1] For the said submission, he has relied on a decision Page 14 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined of the Division Bench of this Court in the case of Shantiben Velabhai Dhila Vs. Election Officer & Anr., rendered in Special Civil Application No.7224 of 2017, dated 03.05.2017, more particularly, an observation made in para - 6 of the decision, and submitted that if the case falls under clause
(b) of sub-section (7) of Section 31 of 'the Act, 1993', all that 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. As it is further held in it that scope of the inquiry in a case falling within the ambit of Section 31(7)(b) of 'the Act, 1993' 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.
[4.2] Mr. B.M.Mangukiya, learned advocate for respondent No.1 has further relied on another Division Bench's Page 15 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined decision in the case of Nilaben Ashwinbhai Ka. Patel Vs. Meghaben Datteshkumar Amin & Ors., rendered in Special Civil Application No.8762 of 2017, which reiterates the view taken in the case of Shantiben Velabhai Dhila (supra), and submitted that conducting of inquiry under sub-section (3) of Section 31 of 'the Act, 1993', is not sine qua non for invoking powers of Judge as envisaged under clause (b) of sub-section (7) of Section 31 of 'the Act, 1993'. Therefore, he has submitted that there is nothing wrong in passing of an impugned order by the learned Judge.
[4.3] He has further submitted that if this Court finds any conflict between decisions in the case of Meghaben Datteshkumar Amin (supra) and Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra), then this Court is supposed to refer the matter to the larger bench. [4.4] However, according to his submission, this Court cannot take a different view than the view taken by the coordinate bench of this Court in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Page 16 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025
NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined Patel (supra).
[4.5] We pointed out to the learned advocate Mr. Mangukiya, that neither of the decisions in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra), is shown to the another coordinate Bench of this Court which determined the case much after both these cases determined i.e. after about a year or so. The decision in the case of Meghaben Datteshkumar Amin (supra) is rendered on 26th / 28th June 2018, whereas decisions in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra), are rendered on 03.05.2017 and 27.04.2017 respectively.
[4.6] Mr. Mangukiya, learned advocate was requested by us to assist the Court, to reconcile with two sets of two different decisions, the course, this Court should adopt. To the same, he has, as an Officer of the Court, cited several precedents and several decisions; reference of which would lengthen the judgment. However, fact remains that though judgments are on the principle with regard to decision per incuriam, we may deal Page 17 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined with that aspect later on in this judgment.
[5] Having heard the learned advocates for the appearing parties and going through the impugned judgment and order as also the annexures annexed along with it, it reveals that, not only no inquiry is conducted as contemplated under sub-section (3) of Section 31 of 'the Act, 1993, by the learned Tribunal, before undertaking the exercise of scrutiny and computation of votes recorded in favour of each candidate i.e. recounting as done by the learned Tribunal and thereafter passing the order declaring respondent No.1 herein as elected Sarpanch of Dungri Gram Panchayat by margin of 6 votes, however, vide order dated 11.05.2022 in this petition status quo position as existing on that day was ordered to be maintained. The said order has come to be extended time and again which is extended till today also.
[6] For the decision in this case, certain provisions of 'the Act, 1993' e.g. such as 31(3), 31(7) (a) (b), are required to be quoted hereinbelow:
"31 (3) An inquiry shall thereupon be held by the Judge and he may after such inquiry as he deems necessary, pass an Page 18 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined order, confirming or amending the declared result, or setting the election aside. For the purposes of the said inquiry, the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive."
"31 (7) (a) If on the holding of such inquiry the Judge finds that the candidate has for the purpose of the election 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 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."
[7] A bare look at Section 31 and other sub-sections therein, reveal that for either confirming or amending the declared result, or setting the election aside, it is incumbent upon the Judge to conduct inquiry as contemplated under sub- section (3) of Section 31 of 'the Act, 1993'. Sub-section (7) of Section 31 and clause (a) & (b) thereof, are not independent of Page 19 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined sub-section (3) of Section 31 of 'the Act, 1993'. At the same time, when clause (a) of sub-section (7) refers about "holding of such inquiry", which is apparently missing in clause (b) of sub- section (7), is not to be considered for the purpose whether inquiry is to he held or not? before passing any order as referred to in clause (a) and / or clause (b). The narration of clause (b) which is explicit, reveals that "in any case to which clause (a) does not apply, it means where Court comes to a conclusion that candidate has committed a corrupt practice within the meaning of sub-section (8); it provides for disqualification and in absence of any allegation of corrupt practice, for the purpose of election, committed by anyone, in that case evidence adduced before the Tribunal in the form of inquiry where validity of election is in dispute between two or more candidates, on such material being brought on record, which may compel the Judge to undertake scrutiny and computation of the votes recorded in favour of each candidate, to declare the candidate, who is found to have greatest number of valid votes in his favour to have been duly elected." [7.1] Therefore, purpose of clause (a) & (b) in sub-section Page 20 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined (7) of Section 31 of 'the Act, 1993' appears to be different but that is after conducting an inquiry as contemplated under sub- section (3) of Section 31 of 'the Act, 1993'. [8] There may be a case where adequate statement of all the facts on which allegations of irregularity or illegality in counting of votes are founded with contemporaneous evidence in support thereof, it may not be necessary for the Court to hold a regular inquiry as postulated under clause (a) of sub-section (7) of Section 31 of 'the Act, 1993'. However, an order for recounting on the basis of bare allegations in the election petition would not be a proper exercise of jurisdiction under the provisions. Examining the election application and the impugned order, keeping in mind the aforesaid principles, we are at a loss to find any such adequate material disclosed in the petition, that too, with contemporaneous evidence, which may lead the Tribunal to pass an order of recounting without conducting an inquiry as contemplated under sub-section (3) of Section 31 of 'the Act, 1993'. Be that as it may, the Tribunal in an election application under Section 31 of 'the Act, 1993' is not to act as mere post office and acting as second Returning Page 21 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined Officer, for the one election, who is also to undertake the exercise of recount of votes in accordance with law. It is only on the basis of sufficient material disclosed in the election application on which the allegation of irregularity or illegality are founded along with some contemporaneous evidence, that too, after conducting an inquiry, the Judge has to conclude based on that material / evidence to undertake the exercise of scrutiny and computation of votes, as enumerated in clause (b) of sub-section (7) of Section 31 of 'the Act, 1993'.
[9] The decision in the case of Meghaben Datteshkumar Amin (supra), more particularly para - 8 & 9 thereof, after considering sub-sections (3), (7)(a) and (7)(b) of Section 31 of 'the Act, 1993' as also the Gujarat Panchayat Election Rules, 1994, categorically held that sub-section (3) of Section 31 of 'the Act, 1993' thus requires concerned Judge to hold a proper inquiry into the allegations contained in the election application and upon culmination of such inquiry, to pass an order either confirming the result already declared or to set aside the election. While dealing with clause (b) of sub- section (7) of Section 31 of 'the Act, 1993', the Division Bench of Page 22 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined this Court in the aforesaid case, concluded that it applies in a case where clause (a) does not apply, meaning thereby, when there are no findings of corrupt practice against any candidate, in such a case, if the validity of an election is in dispute between two or more candidates, the Judge would 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. [9.1] As further held in that case, the legislative intent of enacting clause (b) of sub-section (7) of 'the Act, 1993' thus is to ensure that the candidate securing the highest number of valid votes is duly declared elected. If there has been any error in the process of counting the votes; which would include acceptance of invalid votes or adding to the tally of votes in favour of one candidate when the vote is polled for any candidate, such error should be corrected.
[9.2] As recorded in para 8.1 of the aforesaid decision, even before resorting to the powers under clause (b) of sub- section (7) of Section 31 of 'the Act, 1993', the Judge must Page 23 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined satisfy himself through proper inquiry, that the need for recount of the votes, has arisen. While considering the analogous provisions under the Representation of Peoples Act, 1951 (for short 'the Act, 1951') and the provisions made therein, it is noticed by the Division Bench of this Court that there is no provisions in 'the Act, 1951', parallel to sub-section (7) of Section 31 of 'the Act, 1993'. In background of such provisions, Courts have put considerable stress on secrecy of ballots and not upsetting the result of election lightly and in any case not recognizing mere smallness of margin as standalone ground for granting recount. Nevertheless, sub-section (7) of Section 31 of 'the Act, 1993' which is vitally different from the provisions contained in 'the Act, 1951' providing mechanism for resolving election disputes, must be given its due importance, weightage and meaning. Reconciling and recognizing the inter-play between sub-section (3) of Section 31 and clause (b) of sub- section (7) of Section 31 of 'the Act, 1993', construing harmoniously in para-9 of the aforesaid decision and the Division Bench concluded that inquiry as envisaged under sub- section (3) of Section 31 of 'the Act, 1993' must precede recount Page 24 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined of votes to arrive at such a conclusion . In other words, not for mere asking but upon inquiry envisaged under Section 31(3) of 'the Act, 1993', if reasonable grounds are made out, recount should be undertaken.
[10] Though decision in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra), takes a view that if in the event a case falls under clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', 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 inquiry in a case falling within the ambit of Section 31(7)(b) of 'the Act, 1993' 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, is independently determined without the provisions contained in Page 25 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined sub-section (3) of Section 31 of 'the Act, 1993'. Be that as it may, the view taken by the Division Bench of this Court in the case of Meghaben Datteshkumar Amin (supra), though without noticing the aforesaid two decisions, is the view interpreting the provisions of 'the Act, 1993' and in consonance with the decision of the Supreme Court in the case of Udey Chand (supra), wherein Supreme Court was called upon to consider and determine the very similar such provisions as mentioned in Section 176(4)(a) and (b) of the Haryana Panchayati Raj Act, 1994.
[10.1] As recorded in para-12 of the decision of the Supreme Court in the case of Udey Chand (supra), the importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by Supreme Court in several cases. It is held that "it would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz.: (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or Page 26 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, marking of such an order is imperatively necessary." [11] Relying on the several decisions of the Supreme Court as also decision in the case of Vadivelu Vs. Sundaram & Ors. reported in AIR 2000 SC 3230, in which, the Court has considered that the petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. While specifically dealing with Section 176(4)(a) and (b) of the Haryana Panchayati Raj Act, 1994, which is almost pari materia to the provisions contained in clause (a) and (b) of sub-section (7) of Section 31 of 'the Act, 1993', the Court held that petition for recount as contemplated in clause (b) of Section 176(4) of Haryana Panchayati Raj Act, 1994, must contain adequate statement of material facts on which the election petitioner relies in support of his allegation and it must also be supported by some contemporaneous evidence to show irregularity or illegality in Page 27 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined the counting. The only difference between the Haryana Panchayati Raj Act, 1994 and 'the Act, 1993' is about powers of the Court under sub-section (3) of Section 31 conducting an inquiry and thereafter, passing an order confirming and / or amending the declared result and setting the election aside. The Haryana Panchayati Raj Act, 1994 does not have similar such provisions for conducting inquiry as provided in sub-section (3) of Section 31 of 'the Act, 1993' and therefore, it did not fall for consideration before the Supreme Court in the case of Udey Chand (supra) but in para-12, it has been held that there has to be evidence adduced, but it has been very specifically dealt with by the Division Bench of this Court in the case of Meghaben Datteshkumar Amin (supra), and very categorically concluded that even before resorting to the powers under clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', the Judge must satisfy himself through proper inquiry, that the need for recount of the votes; has arisen. [11.1] Considering and analyzing sub-section (3) and sub- section (7) of 'the Act, 1993', in para -8 of the aforesaid decision, it is held that sub-section (3) of Section 31 of 'the Act, Page 28 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined 1993' thus requires the concerned Judge to hold proper inquiry into the election petition and upon culmination of such inquiry, to pass order either confirming the result already declared or set aside the election.
[11.2] In para -9 of the aforesaid decision, it is specifically held that inquiry as envisaged under sub-section (3) of Section 31 of 'the Act, 1993' must precede recount of votes to arrive at such a conclusion. In the present case, without conducting any such inquiry as also without even finding adequate and sufficient averments in the election petition, learned Judge has ordered recounting of votes, that too, through Court Commissioner and on an application being filed, that it is for the Judge to scrutinize and compute the votes, it has been undertaken by him and ultimately setting aside the result announced by the Returning Officer and declaring respondent No.1 herein as Sarpanch of Dungri Gram Panchayat by margin of 6 votes vide impugned order.
[12] In absence of any provisions as contemplated under sub-section (3) of Section 31 of 'the Act, 1993', the contention raised by the learned advocate for respondent No.1 herein that Page 29 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined no inquiry is required to be initiated prior to ordering recount and undertaking the exercise of scrutiny and computation of votes, may prompt the Court to accept the same but when there is such provision which is held to be conducting of inquiry should precede the recounting ordered as interpreted by the Division Bench in the case of Meghaben Datteshkumar Amin (supra), we are unable to accept the contention of the learned advocate for respondent No.1 and the decisions cited by him in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra). Not only that, even Haryana Panchayati Raj Act, 1994 also does not have similar such provisions of conducting inquiry under sub-section (3) of Section 31 of 'the Act, 1993' and therefore, when interpreting clause (a) and (b) of Section 176(4) of the Haryana Panchayati Raj Act, 1994 which are more or less similar to clause (a) and
(b) of sub-section (7) of Section 31 of 'the Act, 1993', Supreme Court in para-12 of the decision in the case of Udey Chand (supra), led emphasis on evidence adduced in support of allegations seeking recount of ballot papers. [12.1] We are to follow the decision, which not only Page 30 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined interprets both the relevant provisions, such as sub-section (3) and sub-section (7) of Section 31 of 'the Act, 1993', whereas provisions contained in sub-section (3) of Section 31 is not even considered by the another Division Bench of this Court in the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra). As such, there appears no contradictory decision as suggested by the learned advocate for respondent No.1 when he relies on the case of Shantiben Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel (supra), as requirement of an inquiry contemplated under sub-section (3) of Section 31 of 'the Act, 1993' was not even noticed in the aforesaid two decisions. Whereas the decision in the case of Meghaben Datteshkumar Amin (supra), after quoting and interpreting both these provisions, has reached a conclusion that inquiry contemplated under sub- section (3) of Section 31 of 'the Act, 1993' must precede before ordering recounting as provided under clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', which has support of Supreme Court decision in the case of Udey Chand (supra). [13] In this case, for the cost of repetition, learned Judge Page 31 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025 NEUTRAL CITATION C/SCA/9343/2022 JUDGMENT DATED: 22/04/2025 undefined has not at all considered averments made in the application and has not even reached to a conclusion that there are adequate and sufficient materials supported by contemporaneous evidence to order recounting and therefore also, the impugned order passed by the learned Judge is required to be quashed and set aside.
[ [14] Hence, the impugned order dated 02.05.2022 passed below Exhibit -1 in Election Application No.2 of 2022 by the Election Tribunal being Judicial Magistrate First Class, Pardi, is hereby quashed and set aside and case is remanded back to the Election Tribunal to proceed further in accordance with law. [15] In view thereof, this petition stands disposed of as allowed to the aforesaid extent.
[16] In view of disposal of the main petition, the connected Civil Applications stand disposed of. Record and Proceedings to be sent back to the concerned Court forthwith.
(UMESH A. TRIVEDI, J) (CHEEKATI MANAVENDRANATH ROY, J) Lalji Desai Page 32 of 32 Uploaded by LALJI AMRUTBHAI DESAI(HC01558) on Thu May 01 2025 Downloaded on : Sat May 03 10:52:36 IST 2025