Gujarat High Court
Kantibhai vs Bhikha on 26 June, 2008
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/13444/2007 1/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13444 of 2007
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KANTIBHAI
DEVJIBHAI GAJERA - Petitioner(s)
Versus
BHIKHA
VAJUBHAI GAJERA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1,
MR BM MANGUKIYA for Respondent(s) : 1,
MR
MAULIK NANAVATI, AGP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 26/06/2008
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioner has preferred the petition for challenging the legality and validity of the order dated 21.5.2007 passed by 7th Additional Senior Civil Judge, below application exh.4 in Election Petition No. 1/2006, whereby the learned Civil Judge has allowed the application to the extent that the Commissioner is appointed for taking custody of the votes and for recounting and for preparing Rojkam and such Rojkam is ordered to be produced before the Civil Court.
Heard Mr. Pranav Shah, learned advocate with Mr. Ashish Dagli,learned advocate for the petitioner and Mr. Mangukiya, learned advocate appearing for respondent No.1 and Mr. Nanavati, learned AGP for respondent No.2.
The contentions raised on behalf of the petitioner is that the matter was at the interim stage before the learned Civil Judge and the Court should not exercise the power for ordering recounting at the interim stage without there being any evidence led by the parties to the proceedings; That error was committed in counting of the votes by the Election Officer. Learned Counsel, further submitted that merely because there was election, was no sufficient ground for the Civil Court to order for recounting. He also lastly submitted that the Election Petition was required to be presented before the Civil Judge(JD)(now Civil Judge) and not Civil Judge(SD) (now Senior Civil Judge) and therefore, the order can be said as without jurisdiction, and therefore, he submitted that this Court may interfere.
It appears that the question of non maintainability of the petition before the Senior Civil Judge was not raised before the Civil Court by the petitioner, nor there is such pleading in the record produced in the present proceedings which was the part of the record before the learned Civil Judge and therefore, as such merely because it is pleaded in the present petition, which is petition under Article 226/227 of the Constitution for the first time, in normal circumstances, cannot be entertained. Even if such contention is considered for the sake of examination, then also it lacks merit inasmuch as the exercise of powers by the Civil Court is governed by the provisions of Gujarat Panchayat Act, 1993 read with Gujarat Civil Court Act, 2005 which has been recently enacted by the State Legislature. It is true that the Gujarat Panchayat Act, 1993 and more particularly, Section 31 provides for presentation of the Election Petition before the Civil Judge(JD) and if there is no Civil Judge(JD) then the Civil Judge(SD) having the ordinary jurisdiction within whose area, the election has been held. It was submitted that there is already a Court of Civil Judge(JD)(Civil Judge now as per re-designation) and therefore, the petition could not have been entertained by the Senior Civil Judge.
In any case, it can hardly be disputed that the Civil Court had to exercise the powers regulated by the Gujarat Civil Court Act, 2005 and it is an admitted position that one of the parties to the proceeding who was respondent in the Election Petition was a Government Officer joined in his official capacity namely Returning Officer. As per Section 27(1) of the Gujarat Civil Court Act, no subordinate Court other than the Court of Senior Civil Judge is entrusted with the power to receive or register any suit in which the Government or any officer of the Government in his official capacity is a party. Therefore, since the Government Officer was a party, the entertainment of the petition much-less the exercise of power below interim application by the learned Civil Judge cannot be said as wholly without jurisdiction. The aforesaid is coupled with the circumstance that when the petitioner has lost in the interim application, at that stage such an objection on the point of jurisdiction is raised in this petition for the first time before this Court.
There is no absolute proposition that the Court trying the Election Petition cannot order recounting at the interim stage. The legal position is considered by the Division Bench of this Court in case of Manvar Shankerbhai Mansang v. Pandya Shankerlal Amiram & ors. reported at 1997(3) GLR 2478, in which the Court did permit prima facie exercise powers at the interim stage for recounting on the prima facie satisfactory material available. Learned Counsel for the petitioner by relying upon the decision of another Division Bench of this Court in case of Javantiben Bhikaji Thaveracha v. Rangaben Managji Thaveracha reported at 2003(2) GLH 306, submitted that in that case, another Division Bench of this Court took a different view of not permitting the exercise of power by the Civil Court at the interim stage for recounting. If the said decision is considered, the same is based on the decision of the Apex Court in case of N. Narayanan v. Semmalai and ors. reported at AIR 1980 SC 206, in which the Apex Court also inter-alia had observed that the if the Court trying the petition is prima facie satisfied that making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties, it may exercise the power. However, in fact of that case, the Division Bench found that there is no prima facie satisfactory material and therefore, the Court did not permit the exercise of power for recounting by the Civil Court at the interim stage. Even in the said decision, the earlier decision of this Court in case of Manvar Shankerbhai Mansang (supra) was considered, but was distinguished on facts. Therefore, the learned Counsel for the petitioner is not right in submitting that at the interim stage such powers for recounting cannot be at all exercised by the Civil Court.
If prima facie material available on record is considered, it is an admitted position that Rojkam was drawn in the proceeding of election and at the first counting respondent No.1 petitioner before the Civil Court secured 1074 votes as against 1071 votes secured by the petitioner herein who was the respondent in the Election Petition. Therefore, respondent No.1 had received three votes more than the petitioner herein. Further three votes were reported as missing even at the first counting. Had the result declared based on the same, respondent no.1-original petitioner might have been declared elected. But after the recounting, there were equal votes inasmuch as the petitioner received 1071 votes as well as respondent No.1 herein received 1071 votes. The pertinent aspect is that, votes which were earlier in favour of respondent no.1 herein are added as invalid votes at second recounting. The said fact can be said as having materially affected the result of the election. Since there are equal number of votes and on consideration for single vote or in any case three votes which were earlier in favour of respondent No.1, if counted as valid, the result of election may materially be affected. It is also coupled with the circumstance that for three votes which were missing, there is no explanation whatsoever coming on record. Under these circumstances, when there was equal number of votes and consideration of single vote materially alters the result of the election, and no explanation coming on record for addition of three invalid votes and three missing votes, it cannot be said that there was no prima facie satisfactory material before the Civil Court for exercise of power for ordering recounting.
Apart from the above, it deserves to be recorded that as per the order of the Civil Court, the officer is appointed for recounting and report is to be produced before the Civil Court. Even after such report is produced before the Civil Court, the petitioner if has any legally sustainable objection at the recounting undertaken by the Court Commissioner, such can be raised and in any case, the Civil Court will be required to decide the same and then only the final relief can be granted by the Civil Court after examining the other aspects also which may be germane to the exercise of powers in election matters. Therefore, it cannot be said that the interim order is passed to the extent of reversing the whole situation nor can it be said that it results into totally allowing the Election Petition by declaring the result based on recounting.
In view of the above, there is neither inherent lack of power nor the exercise of the discretion can be said as arbitrary or perverse, which may call for interference by this Court under Article 226/227 of the Constitution.
In view of the above, the petition is merit-less, therefore, dismissed. Interim relief if any stands vacated. No order as to costs.
(Jayant Patel,J.) (Akil Kureshi,J.) (raghu) Top