Gujarat High Court
Jatniben Rameshbhai Buriya vs Election Officer And Dy. Taluka ... on 8 August, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7345 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JATNIBEN RAMESHBHAI BURIYA
Versus
ELECTION OFFICER AND DY. TALUKA DEVELOPMENT OFFICER
==========================================================
Appearance:
MR SUNIL S JOSHI(2925) for the Petitioner(s) No. 1
MR JAPAN V DAVE(5947) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
MS DHVANI TRIPATHI, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 08/08/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. Challenging the order of learned 3rd Addition Civil Judge, Dahod in Election Petition No.1 of 2021 this petition has been preferred in the following factual Page 1 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 back ground under Articles 226 and 227 of the Constitution of India.
1.1 Respondent No.2 herein filed an Election Petition under Section 31 of the Gujarat Panchayats Act, 2003 ('the Act' hereinafter), which was in respect of the general election of the Sarpanch as well as the members of the Gram Panchayat, Kheng, which was held on 19.12.2021. The respondent No.2 is the voter of of Ward No.4, who filled her nomination for the post of Sarpanch of the said panchayat. Along with her, two others also had filled in their nominations for the post of Sarpanch.
1.2 After following the due procedure, Page 2 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 election process was started and the counting of votes had been scheduled on 21.12.2021. The total number of votes cast for the post of Sarpanch was 2624, out of which, 161 votes were declared invalid and 3 votes were cast as NOTA.
1.3 At the end of the counting, the respondent No.2 secured 883 votes, whereas the petitioner secured 906 votes and two other contenders namely Jantabne Bhuriya and Sumitraben Parmar secured 228 and 443 votes respectively and 13 votes were rejected/declared invalid. The respondent No.1 declared the petitioner as a successful candidate of having won the Election for the post of Sarpanch of the said Panchayat. Thus, the margin of votes Page 3 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 between the winning candidate i.e. the petitioner and the losing candidate the respondent No.2 was 23 votes.
1.4 According to the petitioner, respondent No.1 permitted the husband of the petitioner and her supporters inside the voting booth, as alleged by the respondent No.2 on 21.12.2021. Her agent also objected certain alleged illegality perpetrated by the respondent No.1 in and insisted on recounting of the votes. However, the same was not accepted and they were asked to vacate the booth. Therefore, the next day the respondent No.2 gave a written application i.e. on 22.12.2021 to the Prant Officer, Dahod, wherein it was alleged that the respondent No.1 did not Page 4 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 act impartially and the counting of the votes was just to help the petitioner in breach of Rules 60 and 61 of the Gujarat Panchayats Election Rules.
1.5 The Election Petition is the result of the denial of recounting of votes where the prayer is sought to set aside the election result for the post of Sarpanch with the direction to hold the inquiry into the process of counting of votes.
1.6 Along with the Election Petition, the respondent No.2 had filed an application Exhibit 5 praying for the
appointment of the Court Commissioner at the interim stage for the purpose of recounting of votes. In the said Page 5 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 application, it is prayed by the respondent No.2 to appoint the Court Commissioner and seeking the direction to collect the original votes from the office of the respondent No.1 and deposit the same with the Court in a sealed manner and thereafter to scrutinize the same and recount as per the direction of the Court.
1.7 This had been strongly opposed by the petitioner and after hearing both the sides the Court on 23.03.2020 allowed the application at Exhibit-5 directing the Election Officer-respondent No.1 to produce all votes cast in the Election of Sarpanch of the said Panchayat along with other material, documents and the Court also further directed the parties to the said Page 6 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 Election to remain present before the Court on 21.04.2022.
1.8 The present petitioner had moved an application praying for suspension of the order for a period of 30 days for it to challenge before this Court the order of recounting at an interim stage. It is urged that this contravention of the settled principles and hence, present petition with the following prayers:
"13...
(a)Be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the order dated 23.03.2022 passed by the learned 3rd Additional Civil Judge, Dahod below application Exh.5 in Election Petition No.1 of 2021; Page 7 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022
C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022
(b) Pending admission, hearing and final disposal of the captioned petition, be pleased to stay the operation, execution and implementation of the order dated 23.03.2022 passed by the learned 3 rd Additional Civil Judge, Dahod below application Exh.5 in Election Petition No.1 of 2021;
(c)Be pleased to grant ad-interim ex parte relief in terms of para (b) above;
(d) Be pleased to grant any other and further relief in the facts and circumstances of the matter."
2. Other side appeared and also resisted this on the ground that it is an interim order and after once the recounting is over, the outcome can be challenged by either side. However, for present, there is no need for this Court to interfere as Page 8 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 after availing the opportunities to the parties, the Court has passed the order.
3. The respondent No.2 has filed affidavit-in-reply, wherein it is contended that considering Section 31(7)(B) of the Act the Court had passed such an order. The learned Judge has also considered the judgment passed in case of Rameshbhai Sumatbhai Humbal vs. Laxmanbhai Tejabhai Kathariya, reported in AIR 2018 Guj. 97.
4. We have heard the learned advocate, Mr.Sunil Joshi appearing for the petitioner-the winning candidate and also the learned advocate, Mr.Japan Dave appearing for the respondent No.2 representing the original plaintiff Page 9 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 candidate, who lost by 33 votes. We have also heard the learned AGP, Ms.Dhwani Tripathi, who has called the details from the office of Election Commission. 4.1 Learned advocate, Mr.Joshi has relied on the following decisions in support of his submissions:
(1) Javantiben Bhikaji Thaveracha vs. Rangaben Manaji Thaveracha, reported in 2003 (2) G.L.H.306.
(2) Meghaben Datteshkumar Amin vs. State Election Commission, reported in 2019 (1) GLR 404.
(3) Shantiben Velabhai Dhila vs. Election Officer and anr, passed in Special Civil Page 10 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 Application No.7224 of 2017.
(4) Vadivelu vs. Sundaram and others, reported in (2000) 8 SCC 355.
(5) R.Narayanan vs. Semmalai and others, reported in (1980) 2 SCC 537.
5. At the outset, Section 31 of the Act deserves reference along with the Gujarat Panchayat Election Rules.
"(1) If the validity of any election of a member of a panchayat is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question relates, such person may, at any time within fifteen days after the date of the declaration of the results of the election, present an election petition to the Civil Judge (Junior Division), and Page 11 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division), (hereinafter referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held, for the determination of such question. (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.
(3) An inquiry shall thereupon be held by the Judge and he may after such inquiry as he deems necessary, pass an Page 12 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 order, confirming or amending the declared result, or setting the election aside. For the purposes of the said inquiry, the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive. (4) If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under section 274 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election."
Sub-section (3) of Section 31 obligates the Presiding Judge to hold proper inquiry in relation to the allegations made in the Election Petition and after once such inquiry is concluded, it is required either to confirm the result or set aside the Election. This provision also has given the wide powers to the judge concerned, if on Page 13 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 inquiry, it is found that corrupt practices are adopted for the purpose of Election. He can declare the candidate disqualified and he can also set aside the Election of such candidate even if he has been declared elected.
6. Reference will be necessary to the judgment of this Court rendered in case of Meghaben Datteshkumar Amin vs. State Election Commission, reported in 2019 (1) GLR 404. It was a case for the post of Sarpanch of Virsad Gram Panchayat conducted by the State Election Commission in accordance with the provision contained in Gujarat Panchayats Act and the Rules thereunder. There were only two candidates in the fray and the counting of votes also Page 14 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 was conducted after following the procedure. Multiple disputes arose during the counting and they were reached before the Election Officer. Many applications were filed, however, they were rejected by the Election Officer and the result was declared in the late night. The successful candidate's name also had been declared. 6.1 Election Petition was filed before the Principal Civil Judge for setting aside the Election and for conducting the Election afresh. One of the allegations was that in the course of counting of the votes the candidate and her election agents were present, but the Returning Officer had not followed the provision of the Act. The votes were counted in a manner to fovour in Page 15 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 wining candidate. She objected to the same and had raised objection, however that had not been responded to by the Election Officer.
6.2 In an Election Petition preferred before this court in case of Rameshbhai Sumatbhai Humbal (supra), the petitioner had moved an application and prayed for recount of votes as an interim measure before the learned Civil Judge. Such application had been rejected by the learned judge, upon which the petitioner filed appeal-from-order before the District Court. The District Court allowed such an appeal and ordered re-counting of votes by way of interim measure. This had been challenged before this Court by the return Page 16 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 candidate and the Division Bench of this Court had reversed the appellate order and allowed the petition. The reference was made to to sub-section [7] of Section 31 of Act and the final judgment was requested to be passed within a period of six weeks from the date of receipt of a copy of the judgment. In this background, the Court relying on the the decision of the Apex Court and one of the decisions rendered by this Court had held thus:
"8. It can be seen that Section 31 of the Act makes detailed provisions of deciding the election disputes. Validity of an election of a member of Panchayats would be judged within parameters of the said provisions and the procedure laid down thereunder. Sub-section [1] of Section 31 of the Act permits the proceedings to be instituted for calling in question of the election at any time within fifteen days after the date of declaration of Page 17 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 the results of the election and also prescribes the Court which would entertain such election petition. Subsection [3] of Section 31, which is of considerable importance, provides that upon presentation of such election petition, inquiry shall be held by the Judge and he may, after such inquiry as he deems necessary, pass an order confirming or amending the declared result, or setting the election aside. For the purpose of conducting such inquiry, the Judge would exercise all powers of a Civil Court and his decision would be conclusive. Sub-section [3] of Section 31 of the Act thus requires the concerned Judge to hold proper inquiry into the allegations contained in the election petition and upon culmination of such inquiry, to pass order either confirming the result already declared or set-aside the election. Subsection [7] of Section 31 is also important. Clause (a) thereof applies to a case where upon holding of the inquiry, if the Judge finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of subsection [8], in such a case, he would declare the candidate disqualified for the Page 18 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 purpose of that election and for such fresh election, as he may hold under Section 33 and he would also set-aside election of such candidate; if he has been elected. Clause
(b) of sub-section [7] applies in a case where clause (a) does not apply, meaning thereby, when there are no findings of corrupt practice against any candidate. In such a case, if the validity of an election is in dispute between two or more candidates, the Judge would after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. The legislative intent of enacting clause (b) of sub-section [7] of the Act thus is to ensure that the candidate securing the highest number of valid votes is duly declared elected. If there has been any error in the process of counting the votes; which would include acceptance of invalid votes or adding to the tally of votes in favour of one candidate when the vote is polled for any candidate, such error should be corrected. Essentially, upon scrutiny if the Judge finds that a candidate who has Page 19 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 secured the highest number of votes is not declared elected, he would suitably amend the result of the election in terms of subsection [3] of Section 31 of the Act.
8.1 This is not to suggest that in every case for mere asking the Judge would order recount of votes. We are in agreement with the suggestion of counsel for the respondents that the Legislature has not provided for recount of votes in every election petition which is not based on allegation of corrupt practice. The requirement of conducting an inquiry as found necessary and as referred to in sub-section [3] of Section 31 is not done away with. In other words, even before resorting to the powers under clause (b) of sub-section [7] of Section 31, the Judge must satisfy himself through proper inquiry, that the need for recount of the votes; has arisen. At the same time, we cannot equate the election dispute arising under the said Act and to which Section 31 and in particular sub-section [7] of Section 31 applies to the rigours of provisions of the Representation of Peoples Act, Page 20 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 1951 ["Act of 1951" for short] imposed by the Courts through series of judgments, whenever question of recounting of votes arises. Chapter III of the Act of 1951 pertains to the trial of election petitions. Section 100 contained in the said Chapter provides for grounds for declaring election to be void. Section 101 pertains to grounds for which a candidate other than the returned candidate may be declared to have been elected and provides that if any person who has lodged a petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of the opinion that in fact, the petitioner or such other candidate received a majority of the valid notes or that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, High Court after declaring the election of the returned candidate to be void shall also declare the petitioner or such other candidate to have been duly Page 21 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 elected. Noticeably, there is no provision in these sections parallel to sub-section(7) of Section 31 of the Act. In background of such provisions, Courts have put considerable stress on secrecy of ballots and and not upsetting the result of election lightly and in any case not recognizing mere smallness of margin as standalone ground for granting recount. Nevertheless, sub-section [7] of Section 31 which is vitally different from the provisions contained in the Act of 1951 providing for mechanism for resolving election disputes, must be given its due importance, weightage and meaning. Accepting contention of learned counsel for the respondents that even in face of sub-section [7] of Section 31 of the Act, recounting cannot be granted unless and until it is established through cogent and reliable evidence that sufficient number of votes which will materially affect the result of the election were wrongly counted, would render the provision of clause [b] of sub-section [7] of Section 31 wholly redundant and otiose. We must reconcile and recognize the inter-play between sub-section [3] of Section 31 and Page 22 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 clause (b) of subsection [7] thereof. Sub-section [3] and [7] of Section 31 will have to be harmoniously construed."
7. Noticing the decision of the Division Bench of this Court and also the ratio laid down by the Apex Court, we are of the opinion that the order of the learned 3rd Addition Civil Judge, Dahod will need to be interfered with. The direction of recounting of the votes at the interim stage shall surely be not desirable after a well laid down principle in these decisions of both the Court.
8. Resultantly, this petition is allowed. We direct the Election Petition No.1 of 2021 to be completed within period of three months from the date of receipt of a copy of this judgment. This will not in any Page 23 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 manner hamper the rights of the Court to even direct the recount, if at the end of the inquiry, it has found the need to so do it in accordance with law.
9. All original papers received from the learned AGP shall be returned to the Election Officer.
10. We had an occasion to go through the video recording of the process. However, it could be noticed that the intactness of the ballot papers could be seen and is quite visible from the said recording. There does not appear to be the entire recording of counting of the votes so far as the pen- drive which has been supplied to this Court. If there is an availability of the Page 24 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022 C/SCA/7345/2022 JUDGMENT DATED: 08/08/2022 entire record, the same shall be given to the court concerned in the Election Petition No.1 of 2021. If the entire process being very long, the same is not recorded, we would request the State Election Commission in coordination with the Central Election Commission to evolve a method of recording of entire process so that with an advancement of the technology, these documents remain as vital evidence without any interference of the human agency and that can also curtail the scope of litigation.
11. All concerned to cooperate.
Sd/-
(SONIA GOKANI, J) Sd/-
(HEMANT M. PRACHCHHAK,J) M.M.MIRZA Page 25 of 25 Downloaded on : Sat Dec 24 23:04:48 IST 2022