Gujarat High Court
Gauravbhai Babubhai Maniya & 2 vs Chief Election Commissioner & on 23 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/20527/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20527 of 2015
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GAURAVBHAI BABUBHAI MANIYA & 2....Petitioner(s)
Versus
CHIEF ELECTION COMMISSIONER & 1....Respondent(s)
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Appearance:
MR. JARJEESKHAN, ADVOCATE for the Petitioner(s) No. 1 - 3
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 2
MS ROOPAL R PATEL, ADVOCATE for the Respondent(s) No. 1
MS VACAHA DESAI, AGP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 23/12/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioners have prayed for setting aside the declaration of result of Ward No.8 of Surat Municipal Corporation. Petitioners had contested in the said constituency in the recently concluded local elections, result for which was declared on 2nd December, 2015. The prayer for setting aside the result of the said constituency is based on the petitioners' allegation that some of the Electronic Voting Machines (EVM for short) were defective. Petitioners rely on the data supplied by the officials of the total number of votes cast in different wards of the said constituency and the actual number of votes counted at the end of counting process.
Page 1 of 4HC-NIC Page 1 of 4 Created On Thu Dec 24 02:33:27 IST 2015 C/SCA/20527/2015 ORDER Petitioners would contend that there are apparent discrepancies between the two tallies, clearly indicating some mechanical defect in the EVMs.
2. At the very outset, we are of the opinion that this writ petition cannot be entertained. The challenge to election can be made only in election petition in terms of statutory provisions contained in the relevant statute, in the present case, Gujarat Provincial Municipal Corporation Act. Quite apart from involving disputed questions of facts, Courts always insist on such election disputes being raised in election petition.
3. Counsel for the petitioners, however, submitted that at any rate this is a case of re-polling where said discrepancies were found. He would rely on Rule 51 of the BPMC (Conduct of Election) Rules 1994, which read as under:
"51. Fresh Poll in case of obstruction or damage of ballot boxes: (1) The returning officer shall forthwith report the matter to the State Election Commission if at any election-
(a) any ballot box used at a polling station is unlawfully taken out of the custody of the presiding officer, or is accidentally or intentionally destroyed, or lost, or damaged, or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained: or
(b) any such error or irregularity in procedure is likely to vitiate the poll is committed at a polling station.
(2) Thereupon, the State Election Commission shall, after taking all material circumstances into account:
(a) either declare the poll at that polling Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Dec 24 02:33:27 IST 2015 C/SCA/20527/2015 ORDER station to be void, appoint the day and fix the hour for taking a fresh poll at that polling station and notify the day so appointed and the hour so fixed in such a manner as it may deem fit: or
(b) If satisfied that the result of a fresh poll at that polling station will not in any way affect the result of the election, or that the error or irregularity in procedure is immaterail, issue such directions to the returning officer as it may deem appropriate for the further conduct and comlpetion of the election.
(3) Where a report has been sent to the State Election Commission under sub-rule (1), the returning officer shall not commence counting of votes till he gets a clearance to do so from the State Election Commission.
(4) The provisions of rules [19], 20 to 47 shall apply mutatis mutandis in relation to the conduct of a re-poll as they apply in relation to the originally scheduled poll".
4. This Rule 51 is preceded to Rule 50 which pertains to procedure of adjournment of poll. Rule 51, as noted, provides that the returning officer shall report the matter to the State Election Commission if any ballot box used at a polling station is unlawfully taken out of the custody of the presiding officer, or is accidentally or intentionally destroyed, or lost, or damaged, or tampered with and any such error or irregularity in procedure which is likely to vitiate the poll is committed at a polling station. Under Sub-Rule (2) of Rule 51 thereuopn, the State Election Commission would take decision either to declare that polling to be void and appoint the day and time for fresh poll at that polling station; or if it is satisfied that the result of fresh poll at that polling station will not have any effect in the result of the election, permit further conduct and completion of the Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Dec 24 02:33:27 IST 2015 C/SCA/20527/2015 ORDER election. Rule 51 thus envisages re-polling at select polling station where any defect, irregularity, is detected or damaged, destroying etc. of the ballot box has taken place, which is likely to affect the result of the election. This is a stage prior to completion of the election by declaration of the result and not after the result is declared. Any challenge to the declaration of the result can only be through election petition. Even if the case of the petitioner is that such defect was detected by the petitioners and others, during the process of counting of votes and therefore, it was not possible to call for re-poll, the remedy would lie in filing an election petition for appropriate reliefs as permissible under the statute. In the result petition is dismissed.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) ashish Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Dec 24 02:33:27 IST 2015