(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The petitioner has contested election of Borisana Village Panchayat to be elected as a member from its Ward No.8 and alleged that even though he was declared to have won on counting of votes on 14.04.2012, by switching number of votes and a mischief played by respondent No.3, the result was changed so as to show that the petitioner had obtained 124 votes as against 154 votes cast in favour of respondent No.4; and even his application for recounting of votes was rejected. Even after denial on oath of such and other charges by respondent No.3 with documentary evidence of the actual proceeding that took place at the relevant time, the petitioner had insisted upon immediate hearing and calling for the electronic voting machine for inspection in the court as he proposed to further contest the election for the post of 'Upa Sarpanch', which was held on 25.04.2012. Thus, by alleging great mischief and injustice and showing great urgency, the petitioner had urged that a regular election petition required to be filed by him will not serve any purpose and this court ought to make immediate and effective orders so as to only call for the electronic voting machine which would prove his case in minutes.
2. Pursuant to the interim orders made herein, the respondents have brought to the Court the Electronic Voting Machine (EVM) in which votes in favour of the petitioner and respondent No.4 were recorded at the time of the election in question. Learned counsel Mr.Prajapati, appearing for the petitioner, fairly conceded that the EVM was opened by breaking its seals and the result contained therein was shown to the petitioner and his learned advocate. A panchnama and rojkam in respect of inspection of the votes recorded in the machine has been prepared and placed on record with original signatures of the petitioner, the officers concerned as also learned AGP, learned advocates Mr.Prajapati and Mr.Yadav.
3. It was made clear during initial hearing of the petition that the petitioner will be required to pay appropriate amount of cost if the averments and allegations made in the petition turn out to be false. Even then and after initial deposit of the sum of Rs.5,000/- in the Registry of this court, the petitioner has been insisting upon inspection of the machine and has preferred to stick to the stand taken in the petition. Now since the material averments and allegations made in the petition have admittedly turned out to be false, it is necessary that appropriate order awarding cost to the respondent is made. Hearing learned counsel Mr.Prajapati on that issue, he submitted that he had already made an offer to deposit Rs.50,000/-, which may be awarded by way of cost in case of dismissal or withdrawal of the petition, and he further requested that no amount higher than that may be awarded. Learned counsel Mr.Yadav, appearing for the State Election Commission, submitted that the present proceeding have been a daring attempt at misleading the court, doubting integrity of the officers of the Election Commission, and after decision of this court on some important constitutional issues, extraordinary course has had to be adopted at the instance of the petitioner. Therefore, he insisted upon imposition of punitive and exemplary cost upon the petitioner to prevent such abuse of the process of court in future.
4. Having regard to the facts and contentions briefly narrated hereinabove, the petition is dismissed and Rule is discharged with total cost quantified at Rs.50,000/-, out of which Rs.45,000/- shall be paid to the State Election Commission, respondent No.5, and the amount of Rs.5,000/- already deposited with the Registry shall be paid by the Registry to the Gujarat State Legal Services Authority at Ahmedabad. The amount of Rs.45,000/- required to be paid to respondent No.5 shall be paid by the petitioner directly to respondent No.5 on or before 31.8.2012.
Sd/-
( D.H.Waghela, J.) Sd/-
( G.B.Shah, J.) (KMG Thilake) Top