Gujarat High Court
Mayurkumar Shivrambhai Vasava vs Bipinbhai Champakbhai Vasava on 1 September, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/17022/2022 ORDER DATED: 01/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17022 of 2022
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MAYURKUMAR SHIVRAMBHAI VASAVA
Versus
BIPINBHAI CHAMPAKBHAI VASAVA
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Appearance:
MR PUSHPADATTA VYAS(1296) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 01/09/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. RULE. Learned advocate, Mr. Zubin Bharda, waives service of notice of rule on behalf of respondent no.1.
2. The original petitioner of Election Petition No.1 of 2022, who is the present private respondent, had challenged the election of Sarpanch of village Kanera of Taluka Valia, District Bharuch, which was held in the month of November, 2021 by which the present petitioner has been declared elected on the said post.
3. The petitioner has challenged the order dated 06.08.2022 passed by the Principal Civil Judge, Valia, which is dealing Page 1 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 with the Election Petition, being a Tribunal, below application, Exh.13 passed in the aforesaid Election Petition No.1 of 2022 by which the tribunal by the impugned order has issued several directions including the respondents authorities to produce the ballot papers with regard to the election in sealed bags, keeping the same in the custody of the Registrar and further directed for recounting of the votes on 05.09.2020 at 15 hours.
4. The shorts facts arising from the record are as under:
4.1. That election of Sarpanch was declared by the State Election Commission on 29.11.2021 and declared the date of election and the details for the same were also published and counting of votes was scheduled on 21.12.2021. In all 568 votes were casted in the said election. 280 votes were casted in the said election in favour of present petitioner, 274 votes in favour of respondent no.1, 11 votes were declared invalid and 3 were under NOTA and accordingly the petitioner was declared elected as Sarpanch in the said election. By filing the Election Petition No.1 of 20222, the present private respondent has prayed as under:
"A. That this Hon'ble Court be pleased to admit the petition and quash and set aside the election of the respondent no.3 namely Mayurkumar Page 2 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 Shivrambhai Vasava, who has been declared elected Sarpanch of Kanerav Gram Panchayat in Taluka - Valia, District - Bharuch and in turn be pleased to declare the petitioner as elected Sarpanch of Kanerav Gram Panchayat situated in Taluka - Valia, District - Bharuch.
B. That this Hon'ble Court be pleased to quash and set aside the order dated 21.12.2021 passed by the Returning Officer, Kanerav Gram Panchayat and Deputy Mamlatdar, (Supplies) Mamlatdar Officer, Valia, rejecting the application submitted by the petitioner seeking recount of votes and in turn be pleased to direct the returning officer to produce the total ballots polled before the Hon'ble Court and further be please to order a recount and also count the votes polled for the election of Sarpanch and thereafter, declare the candidate who is found to have secured highest number of votes as Sarpanch of Kanerav Gram Panchayat.
C. Pending admission and/or final disposal of the petition, this Hon'ble Court be pleased to stay the operation of the notification issued by the Kanerav Returning Officer, Kanerav Gram Panchayat and Deputy Mamlatdar, (Supplies) Mamlatdar Office, Page 3 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 Valia declaring the respondent no.3 as the elected Sarpanch of Kanerav Gram Panchayat, Taluka - Valia, District - Bharuch till the Election Petition is finally heard and decided by this Hon'ble Court.
D. That this Hon'ble Court be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.
4.2. During pendency of the said Election Petition, an application, Exh.13 was filed by the original petitioner i.e. present private respondent for production of ballot papers and further requested to examine the same and recalculate it. The said application was opposed by the present petitioner. The Tribunal by the impugned order dated 06.08.2022 has accepted the said application and passed various directions as stated hereinabove. Hence, this petition.
5. We have heard Mr. Pushpadutta Vyas, learned advocate for the petitioner whereas Mr. Zubin Bharda, learned advocate for the contesting respondent, who has filed the caveat. Respondent no. 2 is the State Election Commission whereas respondent no.3 is the Election Officer of Kanerav Gram Panchayat, who was the Returning Officer at the relevant time, and therefore dealing with the present petition, we thought it Page 4 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 fit not to call upon the Officers to decide this petition and accordingly the petition is heard.
5.1. Mr. Vyas, learned advocate for the petitioner, has vehemently submitted that looking to the contents of Election Petition and the prayers made therein, granting of application, Exh.13 and counting the votes before any trial would be amounting to allowing the petition without any inquiry or trial as contemplated under the provisions of the Gujarat Panchayat Act, 1993 (hereinafter referred to as 'the Act') particularly Section 31 of the said Act. He submits that the tribunal can decide the validity of the votes only subsequent to the inquiry, which is to be followed by the Civil Procedure Code as provided under Sub Section 3 of Section 31 of the Act and therefore, the order of calculating the votes at this stage is illegal and hence the impugned order is required to be quashed and set aside.
5.2. In support of the same, he has relied on the decision of the Division Bench of this Court in the case of Manjulaben Prakashkumar Chaudhary Vs. State of Gujarat and Ors. reported in 2017 (3) GLH 65 and submitted that it is specifically held that order of inquiry can be passed only and order of recounting votes can not be granted at an interim stage. He has also relied upon the decision of the Division Page 5 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 Bench of this Court in the case of Javantiben Bhikaji Thaveracha Vs. Rangaben Manaji Thaveracha reported in 2003 (2) GLH 306. He submits that it has been specifically held that recount of votes cannot be permitted at interim stage in absence of cogent evidence, which is to be led in a full-fledged trial in the Election Petition. He therefore submitted that the petition be allowed and the order impugned be quashed and set aside.
6. On the other hand, learned advocate Mr. Bharda, has opposed this petition and submitted that the reason for filing the petition is the interim application filed by the present respondent before the Returning Officer for recalculating the votes, which came to be rejected, and therefore, in these circumstances, the tribunal has committed no error in passing the impugned order. In support of the same, he has relied on the decision of the Division Bench of this Court in the case of Meghaben Datteshkumar Amin Vs. State Election Commission, Gandhinagar & Ors rendered in Special Civil Application No.15443 of 2017. He therefore submits that the present petition be dismissed.
7. We have heard learned advocates for the respective parties. It is an undisputed fact that the challenge in the Election Petition is twofold, declaring the present private respondent elected under the Gram Pranchayat and of Page 6 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 recounting of the votes. It is also an undisputed fact that the trial has not begun and no witnesses are examined by any of the parties. It is undisputed that an application Exh.13 has been filed in the nature of relief, which was already prayed in the Election Petition, which was granted by the tribunal. Therefore, in our considered opinion, the judgment delivered by this Court in the case of Javantiben Bhikaji Thaveracha (Supra) will be applicable. The Division Bench of this Court has relied upon the decision of the Apex Court and has held in paragraph 7, which reads as under:
"7. Before we proceed to deal with the rival contentions, it will be necessary to refer to and consider the law on the subject. In the case of N.Narayanan v. Semmalai and ors., reported in AIR 1980 SC 206, the Apex Court has ruled that, "the relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered would not by itself vitiate the Page 7 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 counting of votes or justify recounting by the Court."
In paragraph 26 of the said judgment, the Apex Court has further considered that the Court will be justified in ordering recount of the ballot papers only where,
(i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
From the above judgment, it is clear that on the basis of the allegations, recount is not permissible. It is only after when those allegations are proved by Page 8 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 cogent evidence, the recount can be ordered. In other words, recount cannot be ordered at the interim stage.
In a recent decision in the case of Vadivelu v. Sundaram and ors., reported in (2000) 8 SCC 355, the Apex Court has specifically observed that, "recounting of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to recount of votes under such circumstances to do justice between the parties."
Page 9 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022C/SCA/17022/2022 ORDER DATED: 01/09/2022 In this decision, the Apex Court has also emphasised that recounting cannot be ordered on the basis of general and bald allegations. The party seeking recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes."
7.1. In the case of Manjulaben Prakashkumar Chaudhary (Supra), the Division Bench has relied upon various judgments of the Hon'ble Apex Court keeping in mind the provisions of Sub Section (3) of Section 31 of the Act and the provisions of Order 39, Rule 1 and 2 of the Code of Civil Procedure and has held in paragraph 11, 12, 13, 14, 15 and 16 as under:
"11. The analysis of the provisions of section 31 of the Act of 1993 manifests the legislative intention of providing a mechanism or forum for adjudicating election disputes presented by way of an election petition before the Civil Judge. The section further prescribes a comprehensive procedure for determining the validity of an election. sub-section (3) of section 31 of the Act of 1993 specifically uses the expression "inquiry" which will not embrace the sense of "trial". Correspondingly, an election petition cannot be equated with a "suit" filed in a Page 10 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 Civil Court. As a necessary consequence, the Civil Judge exercising powers under section 31 of the Act of 1993 is a "persona designata" but not a court, despite the fact that he is expected to act in a quasi judicial manner. The Division Bench of this Court in the judgement dated 07.03.2016 rendered in Special Civil Application No.12641 of 2016 after examining section 14 of the Gujarat Municipalities Act, 1963 (hereinafter referred as "the Act of 1963"), which is pari materia to section 31 of the Act of 1993, has held that the "Judge" referred in section 14 of the Act of 1963 is a "persona designata" appointed for adjudicating the proceedings as a "Tribunal" and not as a "Court" and the proceedings before the Judge under section 14 of the Act of 1963, cannot be termed as proceedings of "Civil" nature but the same are "statutory proceedings" in the nature of an inquiry for adjudicating the validity of election under challenge. No convincing factors or reasons are presented before us to deviate from the view rendered in the aforesaid judgement.
12. We shall now endeavor to examine the issue regarding the exercise of the power of granting interim injunction akin to Order 39 rule 1 and 2 of the Code in an election petition by the Civil Judge.Page 11 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022
C/SCA/17022/2022 ORDER DATED: 01/09/2022 In our considered opinion, the provisions of section 31 of the Act of 1993 do not envisage such power. Though, sub-section (3) states about the exercise of all the powers of the civil court, the same will not confer the power of granting an interim injunction. The Judge who is a persona designate cannot exercise powers under Order 39 rule 1 and 2 of the Code. The Judge can only adopt such procedure which can assist the inquiry or investigation carried in furtherance of section 31 of the Act of 1993 for deciding the validity of an election. It is evident from the aforesaid provisions that the legislature was cognizant of the fact that the power to grant an interim injunction cannot be conferred to the Civil Judge looking to the nature of proceedings confronted by him. In the case of Somabhai Kachardas Patel the Division Bench while examining Section 14 of the Gujarat Municipalities Act, 1963 has observed thus:
"In an election petition there is no question of breach of contract or proceedings for breach of contract and so far as injury is concerned, it must be legal injury from the action contemplated by the other party to the Page 12 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 proceedings. Under section 14 the only inquiry that is permissible to the Election Tribunal is an inquiry regarding validity of election of a councilor and there is no question of any legal injury which the applicant before the Election Tribunal can suffer from and therefore even that part of Rule 2 of Order 39 which speaks of "other injury of any kind" will not be applicable to proceedings challenging the validity of an election. Under these circumstances, Order 39, Rule 2 also cannot be invoked by any party to an election petition which is instituted under section 14 of the Gujarat Municipalities Act. If that is so., there is no question of invoking the provisions of Order 43, Rule 1 for establishing maintainability of an appeal against the order refusing to grant an injunction during the pendency of an election petition.
"We are, however, of the view that the Gujarat Municipality Act has neither invested the petitioners challenging the validity of the election with the substantive right to claim injunction or correspondingly conferred the Page 13 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 power to grant injunction in Tribunal."
...But it is well settled law that the doctrine of implied power can be brought into play only if it is found that a duty had been imposed or power conferred on the authority by statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist."
..This principle of implied power cannot be read into the provisions of section 14 of the Gujarat Municipalities Act because all that the Tribunal has to decide is the question of the validity of that election and an injunction of the type sought for in the present case cannot be said to be necessary for the proper determination of the question before it nor can it be said that if such a relief is not granted the result of the election petition, if successful, would be rendered nugatory, nor can it be said that the jurisdiction of Election Tribunal would not be effectively exercised in the absence of any such implied power.
... All that can be said is that if an appeal had Page 14 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 been provided by statute, this procedural provision relating to appeal under the Code of Civil Procedure would become applicable but neither by implied power nor by the very nature of the proceedings can it be said that the power to grant interlocutory injunction under Order 39, Rule 1 or 2 has been conferred upon the Tribunal set up under the provisions of section 14 of the Gujarat Municipalities Act."
13. It will be apposite to refer to the judgement rendered by Justice Jackson in the case of Venkatasubbiah Chettiar Vs. Sesha Aiyar, 1924 AIR(Mad) 797. The relevant paragraph is extracted as under:
"7. An injunction restraining an elected candidate from taking his seat may be in the ends of justice assuming that there is prima- facie ground for holding his election to have been so irregular that any act consequential upon that election is a fraud upon the defeated candidate, but such an injunction in no way affects the conduct of the trial. A Page 15 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 Court which issues such an injunction is really proceeding as if it were seized of the case in the ordinary exercise of its civil jurisdiction and not as a Court inquiring under special rules into the validity of an election. And under Rule 1 an election can only be called into question by a petition presented under the rules. When the party is specially prohibited from invoking the Civil Courts in the ordinary exercise of their judicial functions, I can see no warrant for a Court importing into the inquiry its ordinary Civil powers of its own motion. And, of course, if a Court cannot act under Section 94 and Order. XXXIX, Section 151 not extend its powers."
14. The Supreme Court in the case of All India Indian Overseas Bank Sc And St Employees Welfare Association Vs. Union Of India, 1996 6 SCC 606 has observed thus:
"10. Interestingly, here, in clause (8 of Art.
338) the words used are "the Commission shall ... have all the powers of the Civil court trying a suit". But the words "all the powers Page 16 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 of a Civil court" have to be exercised "while investigating any matter referred to in sub clause (a) or inquiring into any complaint referred to in sub clause (b) of clause 5". All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Art.
338 of the Constitution".
The foregoing analysis and observations culminate into a sole opinion that the Civil Judge is devoid of power of granting interim injunction/relief in an election petition while examining the validity of an election under section 31 of the Act of 1993. The power to grant interim injunction in an election petition filed under section 31 of the Act of 1993 is not embodied in such provisions since the election petition does not envisage an action of civil law or inequity. The Civil Judge under Page 17 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 sub-section (3) of section 31 of the Act of 1993 can exercise the procedural powers of civil court for the purpose of investigation or inquiry for finding any corrupt practice committed by any person.
15. In the case of Jivantiben Bhikaji Thaveracha , the Division Bench of this Court has held that till the allegations made in the application are established and proved, the allegations remain as mere allegations and, therefore, on the basis of the allegations, the Court cannot order recount at the interim stage.
16. Reliance placed on the judgement by the learned Advocate Mr.Viral K Shah in the case of Edara Haribabu cannot apply to the facts of the present case as it appears that the same dealt with the issue of disqualification of an elected member. The judgement of Apex Court in the case of R.Narayanan relied upon by the learned Advocate Mr.Shah cannot come to his rescue since the Apex Court in the said case was dealing with the controversy wherein the Returning officer had rejected the prayer of recount and went ahead with Page 18 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 the declaration of result. In the writ petition being Special Civil Application No.1507 of 2017, the learned Judge has ordered appointment of the Court Commissioner for recounting by way of an interim injunction and simultaneously has also restrained the elected candidates to exercise their administrative powers. In our considered opinion, the method adopted by the Civil Judge is unwarranted and the same is de hors the procedure envisaged in section 31 of the Act of 1993. Sub-section 7 (b) of section 31 of the Act of 1993 envisions that it is the Civil Judge who has to scrutinize and compute the votes recorded in favour of each candidate, thereafter, declare the candidate, who is found to have the greatest numbers of candidates. He cannot bequeath the powers which are conferred upon him by the statute to any one else to perform his functions. In any case restraining the elected members from performing their administrative powers defeats or frustrates the democratic will of the voters who had elected them. The only eventuality which can divest them from holding their office or exercising their administrative function is the final decision on the adjudication of the election petition. Under the circumstances, we hold that the Civil Judge by way Page 19 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022 C/SCA/17022/2022 ORDER DATED: 01/09/2022 of an interim injunction neither has the power to pass an order restraining the elected members in any manner nor he can direct recounting of votes. Furthermore, he cannot order the appointment of a court commissioner or the election officer for scrutiny and computation of votes."
Therefore, the said judgment is also applicable in the facts of the present case.
7.2. As far as judgment relied on by Mr. Bharda, learned advocate, in the case of Meghaben Datteshkumar Amin (Supra) is concerned, the judgment has been delivered on completion of inquiry and all the witnesses were examined and the judgment was delivered after having finding of the tribunal about validity of counting of the votes, and therefore, the same is not applicable and hence the petition is required to be accepted. However, we are of the opinion that the learned tribunal has committed no error in asking the respondent authorities to produce all the ballot papers in a sealed bag and asking the same to be kept in stock room. However, in our opinion, the Tribunal has committed an error directing for recounting of the votes at this stage and the said direction issued in paragraph 5 of the operative part of the order dated 06.08.2022 is required to be quashed and set aside. Hence, the following order is passed:
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7.3. The petition is partly allowed. The impugned order dated 06.08.2022 passed by the Principal Civil Judge, Valia in Election Petition No.1 of 2022 below application Exh.13 is hereby quashed and set aside qua the direction issued by the tribunal in paragraph-5. Rest of the order is not disturbed. It is also expected that the tribunal shall proceed with the Election Petition in accordance with law. All the contentions of the parties are kept open at the time of hearing of the Election Petition. Rule is made absolute to the aforesaid extent.
7.4. Direct service is permitted.
(A.J.DESAI, J) (MAUNA M. BHATT,J) NAIR SMITA V. Page 21 of 21 Downloaded on : Mon Sep 05 20:55:05 IST 2022