Challenge is made in this writ petition under Article 227 of the Constitution of India to the order passed by the learned Principal Civil Judge,Ghoghamba, in Election Petition no. 7 of 2012, whereby the Court directed for appointment of Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, and directed the Court Commissioner to inspect the ballet papers of the election of Sarpanch of Jorapura Gram Panchayat and to submit his report within one month.
Raising various grounds in this writ petition under Article 227 of the Constitution of India, challenge is made to the order passed below Exh. 4 in Election petition no. 7 of 2012, preferred in election of Sarpanch for Jorapura Gram Panchayat held on 29th December 2011, where the present petitioner and respondent no. 1 and 3 filed their nomination forms. The post of Sarpanch in Jorapura Gram Panchayat was reserved for scheduled tribe woman candidate. The petitioner was declared winner, having secured 374 votes, where-as respondent no. 1 secured 367 votes and therefore, the respondent no. 1 challenged the said election by filing election petition no. 7 of 2012.
It is the say of the petitioner that without hearing the petitioner, an application was filed for condonation of delay, which has been allowed and the court also directed for appointment of the Court Commissioner for the purpose of recounting, without giving any reasons and without affording any opportunity of hearing to the present petitioner.
Heard learned advocates for the parties and learned AGP Smt. Rekha Patel appearing for respondent no. 2 and after considering the records of this case this Court intervened in this petition.
The order impugned is contrary to the settled principles of law as there is complete absence of any reasonings, necessitating recounting at this stage. Of course, in the main petition preferred by the present respondent no. 1, challenge is made to the process of recounting. However, the order impugned lacks requisite reasonings as are expected from the Election Tribunal, and such requirement is very well laid down by the Hon'ble Supreme Court as well as by the Division Bench of this Court as mentioned in numbers of cases, as reported in a case of reported in (2000) 8 SCC, page 355 Vadivelu Vs. Sundaram and ors. The relevant para 16 of he aforesaid judgment is being quoted below :
16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count 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 re-count 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 re-count of votes. Secrecy of ballot has always be3en 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 re-count of votes under such circumstances to do justice between the parties.
This petition succeeds, without dilating the issues which are yet to be adjudicated by the election tribunal for quashing and setting-aside the order. Keeping in mind the well laid down principles of the subject by both the Courts mentioned herein above.
This court has not adjudicated any of the issues on merit and resultantly while deciding the election petition; none of the observations made herein above for quashment of the order impugned shall effect the right of the either side.
Petition stands disposed of in above terms. No costs.
(Ms.
Sonia Gokani,J.) Deepak* Top