Gujarat High Court
Dineshbhai Ranchhodbhai Kapdi vs Harisinh Dunkhaji Zala on 10 March, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5522 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MR. JUSTICE CHEEKATI Sd/-
MANAVENDRANATH ROY
======================================
Approved for Reporting Yes No
Yes
======================================
DINESHBHAI RANCHHODBHAI KAPDI
Versus
HARISINH DUNKHAJI ZALA & ORS.
======================================
Appearance:
MR. B.S. PATEL, SR. ADV. Assisted by MR NAMAN K
BRAHMBHATT(11307) for the Petitioner(s) No. 1
MR V.C. VAGHELA assisted by MR. ANIL H PATEL(7832) for the
Respondent(s) No. 1
DELETED for the Respondent(s) No. 2
MS. MEGHA CHITALIA, AGP for the Respondent(s) No. 3
HEMALI D SONI(8450) for the Respondent(s) No. 1
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 10/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner, Page 1 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined challenging the order passed by Principal Civil Judge (Junior Division), Lakhni dated 02.03.2022 below Exhibit- 01 in Election Petition No. 2 of 2021, whereby Election Petition filed by the respondent No. 1 herein came to be allowed so far as recounting of votes is concerned, directing respondent No. 3 - Election Officer, Kuda Gram Panchayat, Taluka Development Office, Taluka: Lakhni, District: Banaskantha, to submit entire record with ballot papers pertaining to election of Sarpanch of Kuda Gram Panchayat within 7 days thereof.
2. After passing of the order, the petitioner herein, vide applicatin Exhibit-58 requested the Court to stay the impugned order till appeal period as he wanted to prefer appeal against that order. The learned Judge vide order of 02.03.2022 passed below Exhibit-58 stayed the same so far as it relates to recounting of votes. However, Court did not stay the order directing respondent No. 3 - Election Officer to produce the record pertaining to the election of Sarpanch along with ballot papers before the Court. Therefore, recounting as per the order passed by the Court is yet not conducted Page 2 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined because that order passed below Exhibit-58 came to be extended till today.
2.1 As coming out from the record, respondent No. 1 herein filed the aforesaid Election Petition before the competent Court under Section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act, 1993").
2.2 As coming out from the Election Petition, seat of Sarpanch was of general candidate and there was no reservation on the said seat of any of the sort. For the post of Sarpanch, respondent No. 1 herein and the petitioner along with one Dunkhaji Bhagaji Silana and one Becharaji Raimalji Rabari were contesting the election of Kuda Gram Panchayat.
2.3 As disclosed to the Court, respondent No. 2 has expired on 20.01.2024, and therefore, vide order dated 18.03.2024, his name came to be deleted from the array of the respondents.
2.4 Voting to the post of Sarpanch was held on 19.12.2021 and counting of the votes was scheduled to Page 3 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined be undertaken on 21.12.2021. Respondent No. 3 herein was appointed as Election Officer for conducting the election to the post of Sarpanch of Kuda Gram Panchayat.
2.5 As averred in the Election Petition, on the day of counting, when that exercise was undertaken, respondent No. 1 herein was present at the place. The counting of votes was undertaken under the direct supervision of respondent No. 3 herein. Before publishing final result of the election by the Election Officer, it was informed that out of the ballot boxes, there were 2050 total valid votes and 184 votes were held to be invalid, totalling 2234 votes, whereas 10 votes were casted to "NOTA".
2.6 As further averred in the application by the respondent No. 1 herein, out of the invalid declared votes, nearly 60 votes were bearing thumb impression over the ballot papers, whereas 40 ballot papers were bearing 'Arrow' mark, as it is further averred that those votes, though declared to be invalid, were in favor of the respondent No. 1 herein. It were not declared valid as it Page 4 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined did not bear the permitted mark over the ballot paper of a 'cross'.
2.7 It is further averred by the respondent No. 1 herein that, on the date of voting, near the polling booth, one rubber stamp was there along with a stamp- pad, which led voters of rural area to use the stamp-pad for the purpose of putting their thumb impression over the ballot papers and they put their thumb impression on the ballot paper at Serial No. 4 of the respondent No. 1 herein, containing his name and his symbol of a 'Pot' and through oversight, they did not utilize stamp putting 'Cross' against the name of respondent No. 1 herein in the ballot paper. As such, as averred in the application, ballot papers containing sign of thumb impression reflected clear intention to cast vote in favor of respondent No. 1 herein and despite that, it was not considered having been casted in favor of him and declared to be invalid. At the same time, 40 of the ballot papers contained sign of 'Arrow'.
2.8 It is submitted that, at the time of voting, plastic rubber stamp placed near the booth was having Page 5 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined on one side of it the 'Cross' mark and on the other side of it, the 'Arrow' mark. It is the case of the respondent No. 1 herein that, some illiterate voters of rural areas have casted their votes by using 'Arrow' mark and that too, against the name at Serial No. 4 of the respondent No. 1 herein and his symbol, which vote is apparently given to the respondent No. 1 herein, had it not been declared invalid. Therefore, intention was also clear to cast their vote in favor of respondent No. 1 herein.
In short, there were only 100 votes declared invalid but apparently, disclosing intention of the voters to cast votes in favor of the respondent No. 1 herein. 2.9 In view thereof, since said votes were exposing intention to cast vote in favor of respondent No. 1, while counting was going on and at about 9:20 p.m., respondent No. 1 gave application to the Election Officer that such votes are wrongly rejected, which was replied by the Election Officer evasively, that too, 6 days after the declaration of the result of election. As per the final result declared, petitioner herein was declared elected Sarpanch and got 670 votes in his favor. Respondent Page 6 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined No.2 - Dunkhaji Bhagaji Silana received 668 votes, Becharaji Raimalji Rabari received 51 votes, whereas respondent No. 1 herein received 651 votes. There were in all 2050 valid votes, whereas 184 votes were declared invalid, which comes to a total of 2234 votes, including 10 votes to "NOTA".
2.10 It is the case of respondent No. 1 herein that, there is a difference of 19 votes only in between the candidate declared elected and himself. However, there are 184 invalid votes declared, out of which nearly 100 declares intention to cast vote in favor of respondent No. 1 by putting either thumb impression or 'Arrow' mark. If these votes are considered as valid and in favor of respondent No. 1 herein, he can be said to have received 751 votes and if result is declared based thereon, respondent No. 1 should have been declared Sarpanch elected. However, respondent No. 3 herein was under
political pressure of petitioner, and therefore, legally casted votes in favor of respondent No. 1 herein were declared to be invalid on technical reasons. Page 7 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 2.11 It is further submitted that, despite recounting was sought for before declaration of final results, respondent No. 3 did not undertake that exercise and declared the result without following due process of law.
Therefore, he requested that, in presence of Court Commissioner, recounting be ordered and either Court Commissioner or the Court itself may examine the validity of the votes and undertake exercise of recounting and then declare the result. Therefore, it was requested that the result of election of a Sarpanch of Kuda Gram Panchayat, Taluka Lakhni, District:
Banaskantha be cancelled. The recounting of votes for the post of Sarpanch of Kuda Gram Panchayat be undertaken in presence of Court Commissioner and after declaring valid the ballot papers containing the 'Arrow' mark as also thumb impressions, declaring intention to cast votes in favor of respondent No.1 herein, be declared valid and recounting be undertaken in that respect, and if it is found that respondent No. 1 is having the highest votes, he be declared as the Sarpanch elected of Kuda Gram Panchayat.
Page 8 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 2.12 On such Election Petition being filed, evidence on behalf of Election Petitioner, i.e. respondent No. 1 herein, as also petitioner and deposition of respondent No. 3 as Election Officer also came to be recorded, though on affidavit, and they were cross-examined by the parties. On appreciation of evidence led before the Election Tribunal, it allowed the Election Petition so far as it relates to recounting of votes with a further direction to the respondent No. 3 herein to produce the entire record pertaining to the election of Sarpanch of Kuda Gram Panchayat along with the ballot papers before the Nazir of the Court within 7 days thereof.
3. Mr. B.S. Patel, Senior Advocate, learned Counsel, assisted by Mr. Naman K. Brahmbhatt, learned advocate for the petitioner, vehemently submitted that recounting of votes cannot be granted on mere asking and on the ground that there is mistake in counting. It is submitted that Tribunal has not concluded that any valid votes have been wrongly rejected and invalid votes have been considered towards counting.
Page 9 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 3.1 It is further submitted that no finding is recorded by the Election Tribunal that non-compliance of Rule 60(4) of the Gujarat Panchayat Election Rules, 1994 (hereinafter referred to as "the Rules, 1994") has materially affected the result of the election. It is further submitted that no recounting had been sought for before the result of the election and also before approaching the Election Tribunal.
3.2 He has vehemently submitted that, votes without valid mark on them to be counted as valid votes is the ground seeking recounting and it has not been accepted by the Tribunal and there are no reasons in the impugned order accepting the same by Tribunal. 3.3 It is further submitted that, all candidates have put their signatures after conclusion of counting votes and declared their satisfaction, including to the counting of votes.
3.4 He has vehemently submitted that, breach of Rule 60(4) of "the Rules, 1994" is not the part of pleadings by the petitioner of Election Petition. Page 10 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 3.5 This so called application made by the respondent No. 1 herein before the Election Officer is not asking for recounting but asking that the ballot paper did contain 'Arrow' mark, it has been declared to be invalid and requested the Election Officer to inquire from where that 'Arrow' mark has come or rubber stamp is also containing cross mark on both the sides, then why this 'Arrow' mark has come on ballot paper be inquired and he be given justice.
3.6 He has further submitted that order of recounting is made without any finding being recorded why it is necessitated. Mere request to consider ballot papers containing thumb impression and 'Arrow' mark to be valid votes, which is apparently polled in favour of the respondent No. 1 herein. As such, Election Petitioner himself in the petition submitted that putting 'Arrow' mark or thumb impression on the ballot paper, may be a mistake of the voters and no ground is established either in the petition or before the Tribunal to seek recounting of votes.
3.7 It is further submitted that vote must contain use of particular mark approved by the Election Commission, which is Page 11 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined as per page 80 determined by the Election Commission, "Arrow cross" mark reflecting 'Swastik'. Therefore, he has submitted that it is not the case of Election Petitioner that the vote having different mark has been accepted by the Election Officer. On the contrary, different mark contained on a ballot paper is pleaded to be due to illiteracy amongst the voters. 3.8 It is further submitted that Election Tribunal has also not given any decision for ballot paper having different mark and/or thumb impression. According to him, unless Tribunal holds these votes having thumb mark or 'Arrow' mark to be valid, Tribunal could not have passed an order of recounting. 3.9 He has vehemently submitted that, breach of statutory rules at the time of counting and non-recording of reasons for rejected votes as well as signature on each invalid vote could not have been argued without case being pleaded and the scope of the Election Petition could not have been expanded. For non-compliance of the statutory rules, there must be assertion to the effect that, because of that, result of election has been materially affected. So far as admission in cross-examination of the petitioner that he has no objection if recounting is performed is concerned, it is submitted that no Page 12 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined application for recounting was given to the Election Officer before declaration of result and the application, which is at page 27 of the petition, was for some different purpose and not for the purpose of recounting.
3.10 For the purpose, he has relied on a decision of this Court in the case of Javantiben Bhikaji Thaveracha v. Rangaben Manaji Thaveracha, reported in 2003 (2) GLH 306, for a proposition that, recounting of votes should not be ordered on mere asking. For the same, there has to be clear evidence. Recounting of votes are only permissible when specific allegations are made and proved. Mere suspicion or small margins do not justify interference with electoral results unless substantial proof exists indicating improper vote handling.
3.11 He has also relied on a decision of this Court in the case of Meghaben Datteshkumar Amin v. State Election Commission, reported in 2019 (1) GLR 404, more particularly, paras 7, 8, 9 and 14 thereof. 3.12 Relying on a case of Janak Singh v. Ram Das Rai & Ors., reported in 2005 (2) SCC 1, it is submitted that Page 13 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined recounting of votes cannot be granted liberally. If no objection is taken at the time of counting, no recounting can be ordered. 3.13 A decision in the case of Satyanarain Dudhani v. Uday Kumar Singh & Ors., reported in 1993 Supp(2) SCC 82, for a proposition that, recounting should not be ordered as a matter of course in absence of pleading of material facts supported by contemporaneous evidence, prayer for recounting made by Election Petitioner in a cryptic objection application without referring to any material irregularity or illegality in counting should not be encouraged. 3.14 Relying on a decision in the case of Bhagwat Vithoba More v. Civil Judge, Jr. Division And Ors., reported in 2002 LawSuit (Bom) 591, which is based on a Supreme Court decision for a proposition that, justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an Election Petitioner on the threshold before an order for recount of votes is actually made.
Page 14 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 3.15 On the ground of non-joinder of parties, referring to Section 31(2)(a) of "the Act, 1993", it is submitted that when a declaration is sought for declaring someone else as elected, all the contesting candidates are required to be joined as a party. 3.16 Drawing attention of the Court to the fact that, over and above the petitioner, respondent Nos.1 and 2, one Becharaji Raimalji Rabari was also a contesting candidate for the post of Sarpanch. Since he is not joined as a party respondent in the Election Petition, relying on a decision in the case of Vivek Raghunath Pandit v. Hitendra Vishnu Thakur, reported in 2007 LawSuit (Bom) 2019, on pari materia provisions of the Representation of the People Act, 1951 (hereinafter referred to as "the Act, 1951") it is submitted that in absence of contesting candidate - Becharaji Raimalji Rabari being joined as a party respondent in the Election Petition, it should be rejected.
3.17 For the very same purpose, judgments in the case of Mohansingh Laxmansinghji v. Bhanwarilal Natha & Ors., reported in AIR 1959 Madhya Pradesh 145 and in the case of Shah Alim Uddin v. Satish Chandra Agarwal & Ors., reported in AIR 1958 Rajasthan 155, are also relied on. Page 15 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 3.18 To the submission that, in view of Order VII Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), case not pleaded would amount to waiver, it is submitted that in view of provisions of sub-section (3) of Section 31 of "the Act 1993", entire Code is not applicable. 3.19 Relying on a decision in the case of Ethiopian Airlines v. Ganesh Narain Saboo, reported in 2011 (8) SCC 539, interpreting Section 14 of the Consumer Protection Act, which is according to his submission, containing pari materia provisions of Section 31 of "the Act 1993", it is held that provisions of "the Code" is applicable to limited extent. 3.20 In the alternative, it is submitted that even if "the Code" is applicable, when all the contesting candidates being necessary party are not joined as party respondent, in view of the decision in the case of Moreshar Yadaorao Mahajan vs Vyankatesh Sitaram Bhedi(D) thr. Lrs. & Ors., reported in 2022 SCC OnLine SC 1307, the Election Petition is required to be rejected.
3.21 According to his submission, since Election Petition was not maintainable at all in view of non-joinder of necessary party, neither interim nor final order can be passed, as per the Page 16 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined law settled by the Honourable Apex Court in the case of Asma Lateef and anr. v. Shabbir Ahmad & Ors., reported in (2024) 4 SCC 696.
3.22 For the admission in the cross-examination inviting recounting by the petitioner, it is submitted that since as per the provision contained in section 31(6)(a) of "the Act 1993", even if petition can neither be compromised nor withdrawn, admission has no value as party alleges for recounting and other side accepts the same, it would amount to compromise, which is not permissible.
On the aforesaid submissions, learned Counsel for the petitioner submits that the petition be admitted and allowed.
4. Mr. V.C. Vaghela, learned advocate, for Mr. Anil H. Patel & Ms. Hemali D. Soni, learned advocates for respondent No.1, submitted that while counting the votes polled, it has not been properly counted as also invalid votes were not declared invalid in accordance with "the Act 1993"
and "the Rules, 1994".
Page 17 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 4.1 He has further submitted that, 184 votes are held to be invalid without there being any ground and without following the provisions of "the Act, 1993" and "the Rules, 1994".
4.2 He has further submitted that the voters, at the time of voting, were misled and instead of putting ink on the rubber stamp, where Swastik 'Arrow' mark is there, the ink was put on the 'Arrow' mark only and thereby, 'Arrow' marks reflects on certain ballot papers, which have been held to be invalid, without following "the Rules, 1994". 4.3 According to his submission, that was the illegality committed during the voting and the said illegality was committed during the counting of the votes as proper procedure was not adopted by the Election Officer and who has casually rejected 184 votes.
4.4 He has further submitted that respondent No.1 had filed Election Petition before the Election Tribunal praying to set aside the result of the election and with a further prayer to declare the respondent No. 1 as elected. On filing of the petition, after examination of witnesses and recording Page 18 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined evidence of witnesses, they were cross-examined as well by the parties.
4.5 As per the case of respondent No. 1 in the Election Petition, 60 of the ballot papers had thumb-mark/impression instead of the official mark against name and symbol of him, which is declared intention of the voter to cast vote in favor of the respondent No.1, whereas on 40 ballot papers there was an 'Arrow' mark put against the name and symbol of respondent No.1 declaring intention to cast vote in his favor. Since stamp- pad was placed at the polling booth, voters, by mistake, put their thumb impressions rubbing it in the ink of stamp-pad so far as 40 invalid votes are concerned, containing 'Arrow' marks, is attributable to the rubber stamp placed there having official Swastik 'Arrow' mark on its one side and only 'Arrow' mark on the other. According to his submission, the Tribunal, considering all these evidences which has been brought on record, ordered for recount of votes, which is legal and does not require any interference.
4.6 He has further submitted that the Tribunal has specifically held that Election Officer, while rejecting votes, has not followed Rule 60(2) as also Rule 60(4) of "the Rules, 1994". Page 19 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined It is also held that, when only one stamp is to be placed at the polling station, from where other stamp has come is not shown by the Election Officer, and nearly 100 ballot papers have been found with thumb-mark and 'Arrow' mark, which shows that there was some illegality committed in the election. 4.7 He has further submitted that Election Officer, in his examination-in-chief stated that 184 votes were declared to be invalid but he is not able to state as to how many ballot papers were containing thumb impression and how many ballot papers were with 'Arrow' marks. He has admitted in his cross- examination that he has not signed the invalid votes and no reasons have been assigned by him for rejecting the said ballot papers. Therefore, according to his submission, the case falls under Section 31(7)(b) of "the Act, 1993", and therefore, it has been rightly concluded that it requires scrutiny and recounting, which is ordered by him 4.8 He has further submitted that the contention raised by the petitioner that unless and until corrupt practice committed by the elected candidate, the Judge shall not set aside the election is concerned, the scope of Section 31 of "the Act, 1993" is very wide, which covers any illegality or Page 20 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined irregularity committed during the whole process of election. Therefore, according to his submission, narrow meaning to an interpretation of Section 31 of "the Act, 1993" cannot be given. 4.9 To a submission that Election Petition was required to be dismissed on the ground of non-joinder of necessary party, it is submitted that since no such issue is raised by the petitioner before the Tribunal, despite evidence is led and witnesses are cross-examined as well, as also order is passed by the Tribunal, no such objection was ever raised. Therefore, at this stage, such objection may not be entertained. 4.10 It is further submitted that, the candidates, against whom the relief is sought, have been joined as party respondents and the fourth candidate, who was contesting the election but the number of votes received by him is so meager that any order passed in the present proceedings is not to affect the said candidate at all. Therefore, according to his submission, the present petition is misconceived and requires to be dismissed.
4.11 Placing reliance on the case of Rameshbhai Sumatbhai Humbal v. Laxmanbhai Tejabhai Khatariya, rendered by the Division Bench of this Court in Special Civil Page 21 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined Application No. 919 of 2018, which is already referred to by the learned Judge in its impugned decision, it is submitted that, while recounting votes, learned Judge has concluded that its scrutiny is also required while conducting recounting of votes. Since it is based on evidence, the said finding may not be interfered with.
4.12 He has further relied on a decision in the case of Meghaben Datteshkumar Amin v. State Election Commission of the Coordinate Bench of this Court, rendered in Special Civil Application No. 15443 of 2017, reported in 2019 (1) GLR 404, for a proposition that, it is not only in the case of corrupt practice being employed by any candidate, Election Petition is to be filed and Tribunal is called upon to determine the same. It may be in the case not following where there is no allegation of corrupt practice being employed, if the validity of election is in dispute between two or more candidates, the Judge would, after the scrutiny and computation of the votes recorded in favor of each candidate, declare the candidate, who is found to have the greatest number of valid votes in his favor, to have been duly elected. Page 22 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined He has further submitted that, upon scrutiny of votes, if the Judge finds that a candidate, who has secured the highest number of votes, is not declared elected, he would suitably amend the result of the election in terms of sub- section (3) of Section 31 of "the Act, 1993". Though no recounting would be ordered in every case on mere asking. Therefore, he has submitted that the order passed by the learned Judge is required to be confirmed by rejecting the petition.
4.13 On the aforesaid submissions, learned advocate for the respondent No. 1 submitted that the petition be rejected.
5. As against that, Ms. Megha Chitalia, learned AGP, for respondent No. 3 - Election Officer, submitted that Election Officer, being Government Servant, has no interest in the election process personally and he has neither favoured anyone nor prejudiced the case of anyone. 5.1 She has submitted that as per the provisions of "the Act, 1993" and "the Rules, 1994", he has carried out his duties as Election Officer during the entire process. Election Officer may not be condemned only because out of the invalid votes declared, how many ballot papers were containing thumb Page 23 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined impression and how many contained 'Arrow' marks, were not known to him.
5.2 She has further submitted that considering the overall evidence brought on record, the result declared by Election Officer, which was signed by all the contesting candidates, may not be interfered with.
6. Having heard the learned advocates for the appearing parties as also learned AGP, we are called upon to determine the validity and legality of an order passed by the Election Tribunal ordering recounting of votes polled at the election of Sarpanch of Kuda Gram Panchayat. 6.1 On filing of the Election Petition by the respondent No.1 herein before the Election Tribunal, vide Exhibit-21, he submitted his examination-in-chief on oath and he was also cross-examined by the learned advocate for the petitioner herein as also learned advocate for respondent No. 3 as well. Thereafter, from the record produced along with the petition, it appears that, petitioner herein has also produced vide Exhibit- 51, his examination-in-chief on oath, and he was also cross- examined by the learned advocate for the respondent No. 1 herein. Not only that, respondent No. 3 herein also being Page 24 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined Election Officer, vide Exhibit-52, produced examination-in-chief on oath and he was also cross-examined on behalf of respondent No. 1 herein in detail. Therefore, it is clear that, on a detailed inquiry and on appreciation of evidence led before the Tribunal, learned Tribunal framed an issue, whether recounting of votes should be ordered pursuant to the Election Petition filed or not.
6.2 Considering the submissions made on behalf of the parties as also the evidence led before it, it is clear that, so far as evidence of Election Officer, who conducted counting, has admitted in his deposition, in a cross-examination made on behalf of the Election Petitioner that, out of 184 votes declared invalid, how many ballot papers contained 'arrow' marks or thumb-mark, which he is not able to state. During the cross- examination, he volunteered that he has not done such bifurcation of invalid vote. He has also shown his inability to state that, from 100 out of 184 votes, whether 100 votes were of arrow marks or not. Though in his cross-examination, Election Officer admitted that grievance voiced by the Election Petitioner about rejection of votes containing 'arrow' marks to be invalid, he gave an application to the concerned officer but Page 25 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined he volunteered that such an application was given by the Election Petitioner at 9:20 p.m. i.e. after declaration of result. 6.3 He has, in his cross-examination, further stated that counting of votes for an election for Kuda Gram Panchayat was concluded at 8.50 p.m.. He put invalid votes in a separate cover but he did not sign or write anything on those ballot papers. He has stated that no rubber stamp containing 'arrow' mark was used in election process. However, rubber stamp used in election containing arrow cross mark i.e. official mark, that rubber stamp contained on its other end an 'arrow' sign. He has categorically admitted in his cross-examination that, ballot papers declared to be invalid contained no writing or signature by him over the same. For the said admission of the Election Officer, who undertook the process of counting of votes, quoting Rule 60(4) of "the Rules, 1994" would be necessary, which reads as under:-
"60.(4) The returning officer shall endorse on every ballot paper which he rejects, the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means or a rubber stamp and shall initial in ink such endorsement".
Page 26 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.4 Considering the provisions of the aforesaid Rule, it is clear that neither he has endorsed the ballot paper nor even signed the ballot paper which he declared invalid, totaling to 184 votes. Therefore, prima-facie exercise undertaken by the Election Officer appears to be not in accordance with law and despite considerable votes stated to be invalid, i.e. rejected, scrutiny thereof and computation of votes by the learned Judge to determine validity of an election, which is in dispute between two or more candidates. This very admission of the Election Officer himself is sufficient to hold that an illegality is committed while counting votes by the Election Officer, and therefore, learned Tribunal appears to have ordered to undertake the exercise of recounting.
6.5 Not only that, as concluded by the learned Judge, Election Petitioner got 19 votes less than the petitioner and out of 2050 votes, it is not clear that 184 votes were declared invalid/rejected on what ground and not in accordance with law. Therefore, learned Judge concluded that, case of the Election Petitioner falls in Section 31(7)(b) of "the Act, 1993". 6.6 Not only that, if the cross-examination of petitioner himself is considered, it is clear that he is also in favor of Page 27 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined recounting. He has affirmed the suggestion that if recounting is ordered, he has no objection, to which he said it is true. It means that, he has no objection if recounting is undertaken by the learned Judge. As such, the other candidate, who is joined as party respondent but died during the pendency of the petition, was having 2 votes more than the petitioner but on recounting asked by him, he was declared elected by a margin of 2 votes from that candidate. However, there is a margin of 19 votes in between the petitioner and the respondent No.1 - Election Petitioner but at the same time, neither the petitioner nor even the Election Officer is sure of rejection of invalid votes and the grounds thereof. Neither invalid votes have been marked as "rejected" nor even initialed or even reason is mentioned in abbreviation by the Election Officer. 6.7 The argument by the learned Counsel for the petitioner that, it is not the case of the Election Petitioner/respondent No.1 that there is mistake in counting. However, such contention appears to be not valid in view of the fact that, his case from the very beginning that votes polled in his favour have been declared to be invalid, claiming to be on the ground of containing 'arrow' marks or marks other than official mark over the same. At the same time, admission Page 28 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined of the Election Officer himself that there is clear violation of Rule 60(4) of "the Rules, 1994", recounting when ordered by the learned Judge is justified.
6.8 The argument that Election Tribunal has not held that any valid vote has been wrongly rejected and/or invalid vote has been counted, however, when it is clearly concluded by the learned Judge that 184 votes have been rejected as invalid by the Election Officer, but without having any mark over the same, either the reason for rejection or it contained initial of the Election Officer, as admitted by him in his deposition. For the purpose of recounting, when learned Judge has held that there is non-compliance of Rule 60(4) of "the Rules, 1994" has materially affected the result of the election, that too, for the purpose of recounting at least. 6.9 As coming out from the record itself that, recounting was already requested by the Election Petitioner before the Election Officer. However, since it was given, as claimed, subsequent to declaration of result, it was not considered by the Election Officer. Therefore, there is no substance in the argument that no recounting was sought for before approaching the Election Tribunal. Page 29 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.10 The contention by the learned Counsel for the petitioner that breach of Rule 60(4) of "the Rules, 1994" is not a part of pleading by the petitioner of Election Petition, so long as Election Officer does not write "rejected" and reason for it in abbreviated form with initial over the same in presence of Election Petitioner, he cannot plead the same in the Election Petition. However, during the course of cross-examination of the Election Officer himself, when it has been brought before the Court that there is a real infraction of Rule 60(4) of "the Rules, 1994", which is even admitted by the Election Officer, whether it is part of pleading or not pales into insignificance. 6.11 The contention of the petitioner that, application addressed to the Election Officer dated 21.10.2021, the date on which counting was made by him, which is at page 27 of the compilation, cannot be termed as an application given for the purpose of recounting. However, reading the contents of it, the intention of the Election Petitioner revealed that it is for the purpose of recounting. At the same time, reason given by the Election Officer, that too, in his deposition that, an application for recount was not considered because it was given after the declaration of result. However, Rule 60(7) read with Rule 61(1) Page 30 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined of "the Rules, 1994" makes it clear that, it has to be made after the declaration of result, which is entered into result sheet in Form No.27.
6.12 As such, there appears no announcement of the total number of votes polled by a candidate as per Rule 60(7) of "the Rules, 1994" is made by the Election Officer, and therefore, saying that it was received after declaration of result is illogical. On the contrary, Rule 61(5) of "the Rules, 1994"
provides that, completion and signing of result sheet in Form No. 27 has to be done only on the completion of counting until the candidates and election agent present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1) of Rule 61 of "the Rules, 1994". Therefore, it is not a mere formality before signing and completing the result sheet in Form No. 27. As such, in absence thereof, compliance of Rule 60(7) of "the Rules, 1994"
as also Rules 61(1) and (5) of "the Rules, 1994" cannot be said to have been made.
6.13 Even if the contention of the learned Counsel for the petitioner is to be accepted that, it is not the case of the Election Petitioner that the vote having different mark has Page 31 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined been accepted by the Election Petitioner but on the contrary, according to the Election Petitioner, same was due to illiteracy amongst the voters; however, in the pleading itself, such assertion is made and based on such assertion, even depositions are recorded not only of the Election Petitioner but also the Election Officer. It is not the case of the Election Petitioner that entire rejected votes contained either 'arrow' mark or thumb impression. His case is that certain ballot papers did have 'arrow' marks against his name and the symbol, which is apparently to be considered as a vote polled in his favour. Be that as it may, it was so declared by the Election Officer while counting votes that it contains 'arrow' marks and thumb marks, and therefore, declared to be invalid. However, no such mark "rejected", with reason in abbreviation thereof and even initial is not there, as admitted by the Election Officer himself in his deposition, recounting has to be given and that has been done by the learned Judge. There is no question of any patent illegality of a corrupt practice alleged by the Election Petitioner when his case is not that. If the case of the Election Petitioner is not based on any corrupt practice challenging the validity of election, he is not supposed to make the averments in respect thereof. Therefore, as Page 32 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined correctly held by the learned Judge, case of the Election Petitioner falls within Section 31(7)(b) of "the Act, 1993. 6.14 It is submitted by the learned Counsel for the petitioner that, infraction of Rule 60(4) of "the Rules, 1994" is not pleaded by the petitioner, and therefore, he cannot expand the scope of his Election Petition seeking a recounting on that ground. However, unless after showing compliance of Rule 60(4) of "the Rules, 1994" for declaring any vote as invalid or rejected, there is no question of pleading the same when there is a clear admission on the part of Election Officer that, nearly 184 votes, which he declared invalid, are neither marked as "rejected" recording reason in abbreviation and putting his initial on the same, and therefore, it cannot be presumed that those 184 votes were validly declared rejected or invalid. If for rejection of a vote, no compliance of Rule 60(4) of "the Rules, 1994" is established, it creates even doubt about even counting of valid votes and there appears no much gap between the votes received by the Election Petitioner as also the petitioner herein, Learned Judge is correct when he has ordered recounting for the purpose of scrutiny thereof. Page 33 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.15 Reliance placed on a decision in the case of Javantiben Bhikaji Thaveracha (supra), more particularly para 7 and 8 thereof, is of no use to the petitioner as an order for recounting of votes cannot be permitted at an interim stage in absence of cogent evidence, which is to be led in a full- fledged trial in an Election Petition, was the reason for allowing the petition before the High Court. Since before conducting full-fledged trial in an Election Petition, immediately after filing of it within few days, an application was made for recounting of votes, which was granted by the Election Tribunal, was the reason for allowing the said petition and quashing and setting aside the interim order passed by the learned Tribunal. However, in any case, it is only after full-fledged trial and the recording of evidence of all the parties and it is based on sound reasoning, including even admissions, of not only the petitioner but of the Election Officer himself that recounting is ordered.
6.16 Reliance placed on paras 7 and 8 of the aforesaid decision is also of no help to the petitioner, as after full-fledged trial and on appreciation of evidence, that too, admissions by the petitioner as also Election Officer in their cross- Page 34 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined examination, when it is clearly proved that the patent illegality for rejecting 184 votes, without following procedure prescribed and in breach of Rule 60(4) of "the Rules, 1994" is established, recounting is ordered. Therefore, in the first place, there is assertion in the pleadings that, certain votes have been rejected having different mark than the official mark over the ballot papers, which was the apparent reason given by the Election Officer, but when it has come in evidence that no such votes have been validly rejected following Rule 60(4) of "the Rules, 1994". Not only that, provisions under Section 31 of "the Act 1993" provides for an inquiry on filing of the Election Petition and learned Election Tribunal is supposed to undertake scrutiny and computation of votes when the validity of an election is in dispute between two or more candidates on an allegation that 184 votes have been improperly rejected, which were apparently polled in favour of the Election Petitioner. 6.17 Reliance placed on decision in the case of Meghaben Datteshkumar Amin (Supra), is again of no help to the petitioner as not only before the Returning Officer an application is filed for recounting of votes and Returning Officer did not pay any heed to it, when petitioner successfully proved Page 35 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined before Election Tribunal that 184 votes have been rejected in an outright breach of Rule 60(4) of "the Rules, 1994", it is to be treated as a sufficient material to permit recounting of votes, i.e. exactly the ratio of the very decision relied on by the learned Counsel for the petitioner, as it is further stated in that decision that legislative intent is to ensure that candidate getting highest number of valid votes is declared elected. If there is any error in counting of votes, same should be corrected.
6.18 Reliance placed on a decision in the case of Janak Singh (Supra), in support of a submission that, recounting of votes cannot be granted liberally. If no objection is taken at the time of counting, no recounting can be granted. Though there is no quarrel with the proposition propounded in the said decision, here in this case, an application for recounting was given to the returning officer, which was not even attended to by him. During the course of deposition before the Court, he gave the reason for not attending such application that it was given after declaration of result. However, there appears no announcement of total number of votes polled by a candidate under sub-rule (7) of Rule 60 of "the Rules, 1994" proved on Page 36 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined record, there is no question of applying for recounting at that stage. Though an application is given at the stage, it was not paid any heed to and without complying it, final result was declared by the Election Officer. Therefore, learned Judge has, in the present case, rightly decided to order recounting of votes for the purpose of scrutiny by himself. 6.19 Decision in the case of Satyanarain Dudhani (Supra) is again on the same principle that, recounting should not be ordered as a matter of course in absence of pleadings of material facts supported by contemporaneous evidence. Again, there cannot be any quarrel for the proposition contained therein. However, in the present case, as submitted by the learned Counsel for the petitioner himself that at page 27 of the petition, there was an application given to the returning officer, though he disputed it to for a different purpose than recounting, it appears to be made for the purpose of recounting itself. Not only that, even evidence led before the Court do suggests, that too, in the form of admissions by the petitioner himself that if recounting is ordered, he has no objection. Therefore, order passed by the learned Tribunal is in accordance with law. Page 37 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.20 The reliance placed on the decision of the Bombay High Court in the case of Bhagwat Vithoba More (Supra) is again of no help to the petitioner, as coming out from that decision itself that no oral evidence whatsoever was adduced before the Court by either party. At the same time, submissions were made based on assumptions and advanced on the basis of facts, which have not been proved before the learned Judge. Here, in our case, not only evidence is adduced by all the parties and the reasoning assigned by the learned Judge based on facts proved during the course of inquiry. 6.21 As concluded in the aforesaid decision of Bhagwat Vithoba More (Supra) in para 11 thereof, not only no evidence having been adduced, even recounting was ordered by the returning officer behind the back of one of the parties. 6.22 A submission made by the learned Counsel for the petitioner that in absence of joining as party all the contesting candidates, the Election Petition before the Tribunal under Section 31(2)(a) of "the Act, 1993" is not maintainable at all, and therefore, no order could have been passed by the learned Judge. This submission appears to be very attractive. However, it is hollow.
Page 38 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined For the purpose of dealing with the said submission, quoting the Section would be profitable, which is as under:-
"31. (2) A petitioner shall not join as respondents to his Election Petition persons except those mentioned in the following clauses, namely:-
(a) where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates, claims a further relief that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further relief is claimed, all the returned candidates, and
(b) any other candidate against whom allegations of any corrupt practice are made in the Election Petition."
6.23 As such, the Election Petition filed, if it is seen, not only validity of election is challenged, Election Petitioner has also claimed that he be declared elected as Sarpanch. Therefore, according to the submission of the learned Counsel for the petitioner, all the contesting candidates of election of Sarpanch other than the Election Petitioner should have been joined as parties in the proceedings. This contention is raised by the learned Counsel for the petitioner on the grounds that one of the contesting candidates for the post of Sarpanch - Becharaji Raimalji Rabari is not joined as party to the proceedings before the Election Tribunal, and therefore, Page 39 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined Election Petition itself was not maintainable, and therefore, any order passed in the said petition is required to be quashed and set aside. As such, the said contesting candidate is not joined as party to the Election Petition but at the same time, no such objection has ever been raised by the petitioner herein before the Election Tribunal till the order is passed and challenged before this Court. It is at this stage before the High Court that such a contention is raised. As such, it is contended that it being a question of law, it can be raised before this Court as well. However, the said submission appears to be incorrect for the reasons that, the objection appears to be as to the non- joinder of necessary party. Apart from whether "the Code"
applies to the proceedings under "the Act, 1993" or not, any objection as to the non-joinder of a party is required to be taken at the earliest possible opportunity and in all cases where the issues are settled at or before such settlement, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. As such, reliance placed on the decision in the case of Vivek Raghunath Pandit (Supra) is also not of any help to the petitioner for the reason that the said case before the High Court was an Election Petition under "the Act, 1951". Page 40 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.24 Learned Counsel for the petitioner draws comparison based on the fact that provisions are pari materia. Therefore, both the provisions are required to be quoted hereunder:-
Section 82 of "the Act, 1951"
"82. Parties to the petition.-- A petitioner shall join as respondents to his petition--
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
Section 31(2) of "the Act, 1993"
"31. (2) A petitioner shall not join as respondents to his Election Petition persons except those mentioned in the following clauses, namely:-
(a) where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates, claims a further relief that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further relief is claimed, all the returned candidates, and
(b) any other candidate against whom allegations of any corrupt practice are made in the Election Petition."Page 41 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined 6.25 First of all, petition before the Bombay High Court in the case of Vivek Raghunath Pandit (Supra) was before the High Court as a trial Court. Objection as to the non-joinder of necessary party was taken before that very first Court. Not only that, under the provisions of Section 82 of "the Act, 1951", it is imperative for a Election Petitioner to join as respondents to his petition when Election Petitioner in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner... Therefore, under the provision, Election Petitioner has to join, in aforesaid circumstances, all the contesting candidates as party to his Election Petition, which has been considered to be mandatory. However, if we look at the provisions under "the Act, 1993", it opens up with non-imperative provision to join as respondent in the Election Petition persons, except those mentioned in the following clause, meaning thereby, all the contesting candidates as well. However, it is not mandatory for the petitioner to join all the contesting candidates for the non- imperative phraseology used for the provision. Therefore, only Page 42 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined the person, i.e. remaining contesting candidate, who is not joined, can raise that objection to the maintainability of Election Petition without joining him as a party, whereas petitioner, who is already joined and he has nothing to do with the person, who is not joined as a party to the proceedings, cannot raise that objection, that too, at this stage when proceedings before the Election Tribunal concluded without raising any such objection before it at the first instance about non-joinder of party. Therefore, considering the language of sub-section (2) of Section 31 of "the Act, 1993", except those persons mentioned in clause (a) were not required to be joined as a party to the proceedings. However, it is not imperative that all those persons mentioned in the clause (a) should be joined as party to the election proceedings. If that was the intention of the legislature, it would have been couched in an imperative language making it mandatory to join all contesting candidates.
6.26 The reason appears to be that, not only in a given circumstance, any other person except contesting candidates should not be joined but it is not imperative that all the contesting candidates should be joined as party respondents. Even if it is so, the manner in which the sub-section (2) is on Page 43 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined the statute book, person, who is contesting candidate, if not joined to the proceedings, he may raise that objection but not any other persons, who are already joined as party respondents. Therefore, though there is no quarrel on the principle of law enunciated in the aforesaid decision of Vivek Raghunath Pandit (Supra), for the difference in the language used in both the enactments as also the very said ground is raised at the first available opportunity, it is not applicable in the present case.
6.27 Decision in the case of Madhya Pradesh High Court in the case of Mohansingh Laxmansinghji (Supra) and of the Rajasthan High Court in the case of Shah Alimuddin (Supra) on the very same principle as that enunciated in Vivek Raghunath Pandit (Supra) need not be dealt with separately.
6.28 Furthermore, there is express provision under sub- section (3) of Section 90 (Now Repealed) of "the Act, 1951"
that the Election Tribunal shall dismiss an Election Petition, which does not comply with the provisions of Sections 81, 82 or 117 of "the Act, 1951", notwithstanding that it has been dismissed by the Election Commission under Section 85 of "the Page 44 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined Act, 1951". As such, now Section 86(1) of "the Act, 1951"
makes such provision on repeal of Section 90 of "the Act, 1951". No such express provision is made under "the Act, 1993", which empowers the Election Tribunal to dismiss an Election Petition, which does not comply with Section 31(2)(a) of "the Act, 1993". Therefore, there appears no substance in the submission made by the Learned Counsel for the petitioner that, the Election Petition itself was not maintainable at all, and therefore, it could not have passed order impugned, has no substance for the reasons stated hereinabove. 6.29 The further contention that "the Code" is not applicable is also of no any help to the petitioner for the reason that, for conducting an inquiry under Section 31 of "the Act, 1993", the Judge may exercise all the powers of a Civil Court. As such, applicability of provisions of "the Code" is not expressly barred. On the contrary, with a non-obstante clause, Judge is prohibited from permitting any petition to be compromised or withdrawn, notwithstanding anything contained in "the Code".
6.30 The decision in the case of Moreshar Yadaorao Mahajan (Supra) for a proposition that, for non-joinder of Page 45 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined necessary party suit can be dismissed; however, for the proposition there is no dispute but in that case before the Supreme Court, joining of other co-owners in a suit for specific performance of an agreement to sale of the property owned by different co-owners and in absence of other co-owners being joined as a party, suit was held to be not maintainable. The issue of non-joinder of other contesting candidate is already dealt with hereinabove, and therefore, the decision relied on in the case of Moreshar Yadaorao Mahajan (Supra) is of no help to the petitioner.
6.31 For a proposition that, when Election Petition itself was not maintainable before the Tribunal, neither interim nor final order could be passed, relying on a decision in the case of Asma Lateef (Supra), though there is no dispute with regard to the principles of law enunciated in it, failure to determine question of jurisdiction, at least prima-facie, when maintainability of suit is challenged before passing any order is the issue determined by the Supreme Court. As such, petitioner had never raised any issue about the jurisdiction of the Tribunal nor even objected to the maintainability of the Election Petition before it on any count. It appears to be a misconception in the mind of the petitioner that, recounting Page 46 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025 NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined order is the interim order passed. It is the final order passed by the Court for scrutiny of votes and thereafter to declare result. 6.32 During the course of inquiry, when a witness is examined and he admits in a cross-examination that, it is true that he does not object to recounting of votes, it is a clear admission, which can never be said to be compromise entered into with the parties, which is said to be prohibited under sub- section (6) of Section 31 of "the Act, 1993". Under the said provision, despite anything contained in "the Code", Judge trying Election Petition under "the Act, 1993" is prohibited from permitting any petition to be compromised or withdrawn. Anything elicited during the course of cross-examination of a witness cannot be said to be a compromise, what is prohibited under sub-section (6) of Section 31 of "the Act, 1993" is the compromise entered into between the parties in writing and placed before the Court for passing a decree in terms of compromise. The petitioner has attempted to confuse his own admission for recounting of votes for the purpose of scrutiny by the learned Judge with compromise, said to be prohibited under "the Act, 1993", otherwise there is no substance in the said submission.
Page 47 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025
NEUTRAL CITATION C/SCA/5522/2022 JUDGMENT DATED: 10/03/2025 undefined
7. On the overall appreciation of evidence, finding recorded by Election Tribunal in an inquiry conducted by it cannot be said to be illegal or in breach of any of the provisions of any law. Therefore, in a petition under Articles 226 and 227 of the Constitution of India, in view of the discussions hereinabove, we do not wish to interfere with the order passed by the Election Tribunal impugned before us.
Hence, this petition, being devoid of merit, is hereby rejected.
Notice is discharged. Ad-interim relief granted earlier is hereby vacated.
Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(CHEEKATI MANAVENDRANATH ROY, J.) Raj Page 48 of 48 Uploaded by Raj Subhash Dhobi(HC01779) on Mon Mar 17 2025 Downloaded on : Mon Mar 17 21:18:13 IST 2025