Gujarat High Court
Manjulaben Prakashkumar Chaudhari vs State Of Gujarat & 2 on 28 March, 2017
Equivalent citations: AIR 2017 (NOC) 1108 (GUJ.)
Bench: Harsha Devani, A.S. Supehia
C/SCA/723/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.723 of 2017
WITH
SPECIAL CIVIL APPLICATION NO. 1507 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/
===================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order NO made thereunder ?
=================================================== MANJULABEN PRAKASHKUMAR CHAUDHARI....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) =========================================================== Appearance:
SPECIAL CIVIL APPLICATION NO.723 OF 2017 MR NARENDRA L JAIN, ADVOCATE for Petitioner(s) No. 1 MR SHIRISH GOHIL, AGP for the Respondent(s) No. 1 MR TEJAS P SATTA, ADVOCATE for Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No.2 SPECIAL CIVIL APPLICATION NO.1507 OF 2017 MR BHARAT T RAO, ADVOCATE for Petitioner(s) No.14 MR SHIRISH GOHIL, AGP for the Respondent(s) No.1 MR DAXAY D PATEL, ADVOCATE for the Respondent(s) No.6 7, 10,13 NOTICE SERVED BY DS for the Respondent(s) No.35, 8 9,1112 MR VIRAL K SHAH, ADVOCATE for the Respondent(s) No.2 =================================================== Page 1 of 25 HC-NIC Page 1 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 28/03/2017 CAV (COMMON) JUDGMENT (PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) (1) Since the issue raised in these writ petitions is common, the same were taken up for final hearing together and are disposed of by this common judgement.
(2) In Special Civil Application No.723 of 2017, the petitioner has assailed the order dated 13.01.2017 passed below Exh.1, by the Judicial Magistrate, First Class, Mansa, in Election Petition No.1 of 2017, whereby the interim prayer for staying the implementation and operation of the result dated 29.12.2016 declared in favour of respondent No.3 by the Election Commission is rejected.
(3) In Special Civil Application No.1507 of 2017, the petitioners have challenged the Order dated 23.01.2017 passed below application Exh.5 in Election Petition No.1 of 2017 whereby the elected representatives have been restrained from discharging their administrative powers and recounting is also ordered.
Page 2 of 25HC-NIC Page 2 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT (4) The dispute in the present petitions arises out of granting and refusing an interim injunction filed in the election petitions challenging the elections under section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred as "the Act of 1993") (5) Relevant facts from each of the petition are incorporated as under
IN SPECIAL CIVIL APPLICATION NO.723 OF 2017
(i) The election of Babupura Gram Panchayat was held on 27.12.2016 and counting thereof was held on 29.12.2016. The elections were concluded on 03.01.2017. It is the case of the petitioner that 71 votes were deliberately misplaced in order to favour respondent No.3.
(ii) Eventually, after recounting of the votes, the petitioner was declared as unsuccessful candidate by a margin of 35 votes as compared to respondent No.3. The petitioner immediately on 29.12.2016, filed a complaint with the Election Officer regarding the lost/misplaced ballots so that the Election Officer reports the same to the Commissioner and take appropriate action under rule 49 of Page 3 of 25 HC-NIC Page 3 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT the Gujarat Panchayats Election Rules, 1994 (hereinafter referred as "the Rules").
(iii) As the Election Officer remained indolent, the petitioner filed Special Civil Application No.22002 of 2016 before this Court, which came to be dismissed on the ground of alternative remedy. Thereafter, the petitioner filed Election Petition No.1 of 2017 wherein, vide order dated 13.01.2017 passed below Exh.1, Judicial Magistrate, First Class, Mansa, rejected the interim prayer of staying implementation and operation of the result dated 29.12.2016 by observing that section 31 of the Act of 1993 does not confer such power on him.
IN SPECIAL CIVIL APPLICATION NO.1507/2017
i) The State Election Commission declared election programme for holding election of Sarpanch and members of Gram Panchayat of Village Nyara, Taluka Padadhari, District Rajkot, on 27.11.2016 by issuing a notification. The date of polling was fixed on 27.12.2016 and the date of counting was fixed on 29.12.2016. There were eight wards in Nyara Gram Panchayat divided in eight constituencies.
Page 4 of 25HC-NIC Page 4 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT
ii) Petitioners No.1 and 2 contested for the post of Sarpanch. From the panel of the petitioners which comprised of seven candidates, three candidates were elected, whereas from the panel of respondent No.2, four candidates were elected. In the election of Sarpanch, petitioner No.1 was declared elected by four votes. Respondent No.2 presented Election Petition No.1 of 2017 on 13.01.2017 before the Principal Civil Judge at Padadhari. Along with the election petition, Exh.5 application for stay came to be moved. Election Petition No.1 of 2017 was fixed on 18.01.2017, thereafter, it was adjourned to 20.01.2017. On behalf of respondent No.1, time was sought and the matter was kept on 21.01.2017. On 21.01.2017 the petitioners sought time to file reply. The petitioners were directed to file reply till 2:30 p.m. on 23.01.2017.
iii) It is the case of the petitioners that on 23.01.2017 they could not file reply because the documents were not available with them. On the same day the Civil Judge heard the application Exh.5 and granted stay as prayed for in the said application i.e restraining the elected representatives from exercising their administrative powers till the result Page 5 of 25 HC-NIC Page 5 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT in recounting is declared. The Civil Judge further directed for the appointment of a Court Commissioner for the purpose of recounting.
(6) Mr.Narendra Jain, learned advocate for the petitioner of Special Civil Application No.723/2017, has submitted that the Civil Judge (Junior Division) or Civil Judge (Senior Division) (hereinafter referred to as the "Judge") referred in section 31 of the Gujarat Panchayat Act, 1993 is a Civil Judge within the meaning of Code of Civil Procedure, 1908 ("the Code" for short). It was contended that subsection (3) of section 31 of the Act of 1993 confers the powers of a civil court on the Judge holding such inquiry, hence, the same would mean a Presiding Officer of a Civil Court as defined under clause (8) of section 2 of the Code, therefore, he is vested with all the powers under the Code, including the power to grant interim injunction under Order 39 Rules 1 and 2 of the Code. He has further asserted that the power of setting aside an election under section 31 of the Act of 1993 by the Judge also includes the power of grant an interim injunction, hence, the impugned order dated 13.01.2017 passed below Exh.1, Judicial Page 6 of 25 HC-NIC Page 6 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT Magistrate, First Class, Mansa, in Election Petition No.1 of 2017, deserves to be quashed and set aside.
(7) Learned advocate Mr.Viral Shah appearing on behalf of respondent No.2 of Special Civil Application No.1507 of 2017, in support of the arguments advance by learned advocate Mr.Jain has submitted that there is no provision in the Act of 1993 and the Rules of 1994 restraining grant of the injunction and in absence of any such provisions, the Civil Judge can exercise all powers as envisaged in Code of Civil Procedure. He has laid emphasis on the judgement of Apex Court rendered in the case of R.Narayanan Vs. S.Semmalai & Ors., reported in A.I.R. 1980 S.C. 206, more particularly Paragraphs No.17 and 18 thereof, which states that the Court would be justified in ordering a recount of the ballot papers when the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded. Reliance is placed on the judgement rendered in case of Edara Haribabu Vs. Tulluri Venkata Narasimham, 2016 (2) S.C.C. 640, more particularly Paragraph No.45 thereof, wherein the Apex Court has observed Page 7 of 25 HC-NIC Page 7 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT that the Courts are always vested with inherent and statutory power to stay/restrain the execution of the action impugned in the lis, during pendency of the lis. These powers are contained in Order 39 Rules 1 and 2, and Order 41 Rule 5 of the Code. In view of the aforesaid submissions, learned Advocate Mr.Shah has urged that the petition deserves to be dismissed as the Order dated 23.01.2017 passed below application Exh.5 in Election Petition No.1 of 2017, whereby the elected representatives have been restrained from discharging their functions and recounting is also ordered does not require interference.
(8) Vehemently opposing the aforesaid contentions of learned Advocates Mr.Narendra Jain and Mr.Viral Shah, learned Advocate Mr.Bharat Rao, advocate for the petitioners of Special Civil Application No.1507 of 2017, has stated that in the absence of a specific finding of corrupt practices in election petition, which is mandatory under section 31(7) of the Act of 1993, the Judge could not have passed the mandatory order below Exh.5 because there is no such provision in the election petition to pass such type of mandatory order restraining the elected representatives from discharging their functions as elected representatives.
Page 8 of 25HC-NIC Page 8 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT He has further submitted that section 31 of the Act of 1993 is a selfcontained code for the purpose of trial of election petition before the concerned court and the concerned judge has to pass order within the four corners of section 31 of the Act of 1993. The aid of provisions of the Code can only be taken for the purpose of issuing summons, recording evidence, compelling presence of witness to attend the court, production of documentary evidence for only, therefore, the Judge has committed error apparent on the face of the record by granting interim relief as prayed for as well as directing recounting, which is mandatory order not permissible in the eyes of law. He has also submitted that the Judge has not considered the "Explanation" given to section 31 (4) of the Act of 1993. Here, the election officer has not committed breach of the Rules and, therefore, the election cannot be set aside. When the election cannot be set aside, then in such cases interim relief cannot be granted. Hence, the order of the Judge below is erroneous, illegal and against the provisions of law.
In support of his arguments, learned advocate for the petitioners has relied on the Page 9 of 25 HC-NIC Page 9 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT judgements in the cases of Jivantiben Bhikaji Thaveracha Vs. Rangaben Manaji Thaveracha, 2003 (2) G.L.H. 306 and Chandrika Prasad Yadav Vs. State of Bihar & Ors. (2004) 6 S.C.C. 331, Somabhai Kacharadas Patel Vs. Patel Becharbhai Shambhubhai, 1980 (2) G.L.R. 1. (9) Learned advocate Mr.Tejas Satta appearing on behalf of respondent No.3 of Special Civil Application No.723 of 2017 has stated that Order 39 Rule 2 of the Code is not applicable to an inquiry as envisaged under section 31 of the Act of 1993. He has relied on the judgement reported in the case of Election Officer, Rohisala Gram Panchayat & Deputy Mamlatdar and Ors. Vs. Dharamshibhai Muljibhai, 1997 (1) G.L.H. 242. He has submitted that there is no illegality or impropriety or unlawful act carried out in the election process. Hence, the said petition deserves to dismissed.
(10) The core question which fastens all the petitioners and respondents in the aforesaid writ petitions is whether the Civil Judge is empowered to grant interim injunction/ interim relief in an election petition filed under section 31 of the Act of 1993 ?
Page 10 of 25HC-NIC Page 10 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT "Sections 31 reads as under:
SECTION 31 : Determination of validity of election, inquiry by Judge and procedure (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, 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 Page 11 of 25 HC-NIC Page 11 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 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.
ExplanationThe expression "error" in this subsection does not include any breach of or any omission to carry out or any non compliance with the provisions of this Act or Page 12 of 25 HC-NIC Page 12 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT the rules made thereunder whereby the result of the electionhas been materially affected.
(5) All election petitions received under subsection (1)
(a) in which the validity of the election of members to represent the same electoral division is in question, shall be heard by the same Judge, and
(b) in which the validity of the election of the same member elected to represent the same electoral division is in question, shall be heard together.
(6)'Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V. of 1908) the Judge shall not permit
(a) any petition to be compromised or withdrawn, or
(b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.
(7)(a) if on the holding of such inquiry the Judge finds that a candidate has for the purpose of the election committed a Page 13 of 25 HC-NIC Page 13 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT corrupt practice within the meaning of subsection (8) he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under section 33 and shall set aside the election of such candidate if he has been elected.
(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall 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:
Provided that for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it:
Provided further that after such computation if any equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case Page 14 of 25 HC-NIC Page 14 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT may be, selected by lot drawn in the presence of the Judge in such manner as he may determine."
(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. Subsection (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 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 quasijudicial 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 Page 15 of 25 HC-NIC Page 15 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 endeavour 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. In our considered opinion, the provisions of section 31 of the Act of 1993 do not envisage such power. Though, subsection (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 Page 16 of 25 HC-NIC Page 16 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 (supra) 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 proceedings. Under section 14 the only inquiry that is permissible to the Election Tribunal is an inquiry regarding validity of election of a councillor 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 Page 17 of 25 HC-NIC Page 17 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 power to grant injunction in Tribunal."
... But it is wellsettled 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 Page 18 of 25 HC-NIC Page 18 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 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 injuction 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 Page 19 of 25 HC-NIC Page 19 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT Venkatasubbiah Chettiar Vs. Sesha Aiyar, A.I.R. 1924 Madras 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 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."Page 20 of 25
HC-NIC Page 20 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT (14) The Supreme Court in the case of All India Indian Overseas Bank Sc And St Employees Wel fare 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 of a Civil court" have to be exercised "while investigating any matter referred to in subclause (a) or inquiring into any complaint referred to in subclause
(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 Page 21 of 25 HC-NIC Page 21 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 subsection (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 (supra), 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 (supra) cannot apply to the facts of the present case as it appears that the same dealt with the issue of disquali fication of an elected member. The judgement Page 22 of 25 HC-NIC Page 22 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT of Apex Court in the case of R.Narayanan (supra) 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 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. Subsection 7 (b) of section 31 of the Act of 1993 envisions that it is the Civil Judge who has to scrutinise 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 Page 23 of 25 HC-NIC Page 23 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT 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 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.
(17) On the consideration of the principles construed from the provisions of section 31 of the Act of 1993 and the authorities mentioned hereinabove, we are of the opinion that Order dated 13.01.2017 below Exh.1, Judicial Magistrate, First Class, Mansa, passed in Election Petition No.1 of 2017 refusing to stay the implementation and operation of the election result dated 29.12.2016 is justified. Accordingly, Special Civil Application No.723 of 2017 is dismissed, RULE is discharged. No order as to costs. However, having regard to the facts and circumstances of the present case, it is Page 24 of 25 HC-NIC Page 24 of 25 Created On Sun Aug 13 03:13:41 IST 2017 C/SCA/723/2017 CAV JUDGMENT expected that the trial Judge shall decide the election petition as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this judgement, on merits and witout being influenced by the observations made in this judgement.
(18) The Order dated 23.01.2017 passed below application Exh.5 in Election Petition No.1 of 2017 by the Principal Civil Judge, Taluka Court, Paddhari, ordering recounting by appointing court commissioner and restraining the elected representatives from discharging their administrative powers is quashed and set aside. Special Civil Application No.1507 of 2017 is allowed, RULE is made absolute ac cordingly.
Sd/ [HARSHA DEVANI, J] Sd/ [A. S. SUPEHIA, J] *** Bhavesh[pps]* Page 25 of 25 HC-NIC Page 25 of 25 Created On Sun Aug 13 03:13:41 IST 2017