Gujarat High Court
Shantiben Velabhai Dhila vs Election Officer & on 3 May, 2017
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/7224/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7224 of 2017
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SHANTIBEN VELABHAI DHILA....Petitioner(s)
Versus
ELECTION OFFICER & 1....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1
MS ROOPAL PATEL, ADVOCATE for the Respondent(s) No.1
MR ASHISH DAGLI, ADVOCATE for the Respondent(s) No.2
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 03/05/2017
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the Principal Civil Judge, Election Tribunal, Bhachau, to decide the application made by the petitioner below Exhibit-33 in Election Petition No.2 of 2017 whereby the petitioner seeks recounting of votes in terms of clause (b) of sub-section (7) of section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act").
2. Heard Mr. B.M. Mangukiya, learned advocate for the petitioner, Ms. Roopal Patel, learned advocate appearing on behalf of respondent No.1 Election Officer and Mr. Ashish Dagli, learned advocate appearing on behalf of respondent No.2.
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3. Having regard to the controversy involved in the present petition and the view that the court is inclined to take in the matter, it is not necessary to set out the facts and contentions in detail.
4. A perusal of the record of the case as placed before this court, it appears that before the learned Principal Civil Judge, the second respondent has filed an application under Order VII rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the election petition on the grounds stated therein. The petitioner, on the other hand, has filed an application seeking recounting of votes, as contemplated under clause (b) of sub- section (7) of section 31 of the Act.
5. Section 31 of the Act provides for determination of validity of election, inquiry by Judge and procedure therefor. Sub-section (1) thereof provides that if the validity of any election of a member of panchayat is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question relates, such person may, at any time, within fifteen days after the date of the declaration of the results of the election present an election petition to the Civil Judge (Junior Division) and, if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division), (hereinafter referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held, for the determination of such question. Sub-section (3) thereof provides that an inquiry shall thereupon be held by the Judge and he may after such inquiry as he deems necessary, pass an order, confirming or amending the declared result, or setting the election aside. It is further provided that for the purpose of Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Aug 16 04:01:34 IST 2017 C/SCA/7224/2017 ORDER the said inquiry, the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive.
6. Clause (a) of sub-section (7) of section 31 of the Act provides that if on the holding of such inquiry, the Judge finds that a 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. It is common ground between the parties that the provisions of clause (a) of sub-section (7) of section 31 of the Act would not be attracted in the present case. Clause
(b) of sub-section (7) of section 31 of the Act provides that if in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. The first proviso thereof provides that for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it. The second proviso provides that after such computation if any equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine. Thus, in the event a case falls under clause (b) of sub-section Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Aug 16 04:01:34 IST 2017 C/SCA/7224/2017 ORDER (7) of section 31 of the Act, all that the Judge is required to do is to scrutinise and compute the votes recorded in favour of each candidate and declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. The scope of the inquiry in a case falling within the ambit of section 31(7)(b) of the Act is, therefore, very limited and all that the learned Judge while making the inquiry pursuant to the election petition presented before him is required to do is to scrutinise and compute the votes recorded in favour of each candidate and declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Needless to state that before entertaining an election petition, the learned Judge is required to consider as to whether or not the petition has been presented within the prescribed period of limitation as contemplated under sub-section (1) of section 31 of the Act.
7. In the above view of the matter, the petition is disposed of with a direction to the learned Principal Civil Judge, Bhachau, to forthwith proceed with the inquiry as contemplated under sub-section (3) of section 31 of the Act in Election Petition No.2 of 2017 in accordance with the provisions of clause (b) of sub- section (7) of section 31 of the Act and pass an order under section 31(3) of the Act, as expeditiously as possible and not later than six months from the date of presentation of the election petition viz., 12th July, 2017. The learned Judge shall also consider as to whether or not the election petition is barred by limitation. Notice is discharged with no order as to costs.
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