(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The petitioner is aggrieved by order dated 17.4.2012 whereby his application for recounting of votes was rejected. According to the petitioner, he had secured 156 votes and his closest rival had secured 124 votes at the time of counting of total 338 votes cast in Ward No.8 of Borisana Village Panchayat. As stated on oath in the petition and contended by learned counsel Mr.Prajapati for the petitioner, the petitioner was declared to have been elected and thereafter recording of votes, at the time of declaration, was interchanged so as to show only 124 votes in favour of the petitioner and 156 votes in favour of the other candidate, who has refused to accept notice issued herein. It is alleged by the petitioner that after leaving the place of counting of votes upon being declared to have been elected, he was not allowed to enter the place, prevented by police and computer result was forged by the returning officer. The petition was initially pressed, and an affidavit is filed, on the basis that the petitioner proposed to contest election of Up Sarpanch held on 25.4.2012.
2. Therefore, on 23.4.2012, notice as to admission and interim relief returnable on 24.04.2012 was ordered to be issued and learned A.G.P. was requested to see that officer concerned remained personally present with the data of voting and declaration of result. Upon affidavit-in-reply for respondent No.3 being filed, it is clear that result has already been declared on 17.4.2012 and 15 days having passed thereafter, appropriate alternative remedy under section 31 of the Panchayats Act is no longer available to the petitioner. Upon insistence of the petitioner that mere checking of the data of votes registered on the electronic voting machine would be sufficient to satisfy the court about correct or incorrect recording of votes in favour of each candidate, order dated 24.4.2012 was made. At that time, learned counsel Mr.J.S.Yadav, appearing for the State Election Commission, submitted that correct facts were required to be placed on record by executing an affidavit of the officer, annexing copies of relevant record. In view of the controversy, the petitioner was directed to deposit the sum of Rs.5,000/- in the Registry which may be awarded as cost in case the petition were dismissed or withdrawn.
3. However, upon hearing of the petition for considering grant of necessary interim relief, learned counsel Mr.Yadav has strongly objected to any direction to check or display the votes recorded in the electronic voting machine on the basis of the legal submissions that this Court has no jurisdiction to issue such orders and to entertain the petition in view of clear constitutional bar contained in the provisions of Article 243-O of the Constitution. Learned counsel Mr.Yadav also relied upon Division Bench judgment of this Court in Thakore Shanabhai Gedabhai v. State Election Commission [2005 (3) G.L.H. 686]. He further submitted that granting the relief of directing checking of the voting machine would amount to grant of final relief and the election of Up Sarpanch being over, the petitioner was required to be relegated to appropriate alternative remedy of filing an election petition.
4. In the peculiar facts and circumstances, as noted earlier, the period of limitation has expired, but the petitioner has, for the reasons of acute urgency, approached this Court within a week of declaration of the result of election and it prima facie appears that the State Election Commission is taking technical pleas not to reveal the correct votes recorded in the voting machine. We are of the prima facie opinion that extraordinary writ jurisdiction of this Court for judicial review of any administrative act is a part of the basic structure of the Constitution and an extraordinary and exceptional circumstance impinging upon process of free and fair election and saving of the democratic process at the grassroots level, particularly in the institutions of local self-government, calls for its exercise.
5. Therefore, the petition is admitted and the parties concerned are requested to address their extensive arguments on the aforesaid issue before any interim order is issued or final decision is arrived at in the matter. S.O. to 14.6.2012 for that purpose.
Sd/-
( D.H.Waghela, J.) Sd/-
( Mohinder Pal, J.) (KMG Thilake) Top