IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4552 of 2012 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= IQRAMULE HAQ ABDULLAH Petitioner(s) Versus SIDDIQ MUSAVALI GANTHIYA & 3 Respondent(s) ========================================================= Appearance :
MR PS CHAMPANERI for Petitioner(s) : 1, MR SK BUKHARI for Respondent(s) : 1, None for Respondent(s) : 2 4.
========================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 02/07/2012 CAV JUDGMENT
1. This petition has been preferred to challenge the order of Principal Senior Civil Judge, Bharuch passed on 20th March 2012, allowing the Election Petition No. 1 of 12 without calling upon the parties to lead evidence, without even framing the issues.
2. General election of Gram Panchayat, Zanghar of Taluka and District Bharuch was conducted on 29th December 2011 the petitioner and the respondent No.1 herein were the contesting candidates on general seat of Ward No. 7 of Zanghar Gram Panchayat. The counting of votes was held at Government Engineering College, Bharuch on 31st December 2011. Total votes cast were of 228 out of which, 10 votes were rejected. The petitioner secured 111 votes whereas the respondent No.1 herein secured 107 votes. A declaration of the result of election was held on 31st December 2011. The petitioner was declared elected and subsequently election of Deputy Sarpanch was held on 16th January 2012. The petitioner came to be elected as a Deputy Sarpanch in the said meeting held on 16th January 2012,
3. On 9th January 2012 respondent No. 1 filed an election petition in the Court of the Principal Senior Civil Judge, Bharuch which was registered as Election Petition No. 1 of 2012. This challenge is made under the premises of Gujarat Panchayats Act, 1993.
3.1 An application for injunction was preferred inter alia urging to prevent the present petitioner from acting as a Member of Zanghar Gram Panchayat and also seeking recounting. The petitioner herein raised a preliminary objection of validity and maintainability which was not entertained and therefore, the order was challenged by preferring a Special Civil Application No. 1620 of 2012.
4. During the pendency of such petition, learned Senior Civil judge called for ballot papers in a sealed condition. It is averred that without framing the issues and without asking the parties to lead evidence, Tribunal directed the recounting vide its order dated 20th March 2012.
5. In light of above developments, the petitioner withdrew the said petition and the Division Bench while permitting such withdrawal passed the following order :
“Without prejudice to the contentions contained in the petition and with liberty to raise them again in a fresh petition, which is required to be filed on account of the developments subsequent to the filing of the present petition, this petition was sought to be withdrawn.
Permission is granted and the petition is DISPOSED OF as withdrawn, in the aforesaid terms.”
6. Heard learned advocate Mr. Champaneri appearing for the petitioner who has urged fervently that Section 31 of the Gujarat Panchayats, Act, 1993 is self contained Code and for adjudicating the disputes relating to the elections, no other form except the one referred to in the provision could entertain the same. Again, without giving an opportunity to lead evidence the Court could not have passed such order. 11 ballot papers were found in a separately sealed cover out of 122 total votes the Court recorded three ballot papers were missing and yet without asking the parties to adduce evidence when such order is passed and the same requires to be quashed.
7. Learned advocate also urged that no recounting was permitted at an interim stage and Court could not have directed the sealed envelope to be opened nor could it have directed recounting unless the trial was conducted.
8. Learned advocate Mr. Bhukhari appearing for the respondent has urged that the Court has jurisdiction to hear election petition under section 31 of the Gujarat Panchayats Act. It is the Court of senior Civil Judge only who could not have done this and since in Bharuch the Court of Civil Judge was not in existence and the Court of Senior Civil Judge is functioning as Court of Civil Judge and the said Court would have jurisdiction to entertain this petition. According to the respondent, it was a matter of only recounting of the votes and petitioner in fact had received 104 votes and the respondent 111 votes and therefore, the Tribunal allowed the election petition and declared the respondent elected member of Gram Panchayat. Serious irregularity was alleged in the petition and therefore, sealed cover was opened by the Court and as the respondent made out clear case of recounting, no further evidence is required to be led.
9. Before adverting to the contentions by the both the sides, it would be appropriate to reproduce the law on the subject.
“(i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.”
10. The decision of Court in this regard will have to be remembered at this stage rendered in case of Vasantbhai Vardhabhai Patel Vs. State of Gujarat and others reported in 1983 G.L.H 319. The Court has held that under section 24 of the Gujarat Panchayat Act 1961. the election petition is to be heard by the Civil Judge, Junior Division and if there is no Civil Judge, (Junior Division) then the Civil Judge, (Senior Division) will entertain the petition.
11. The Division Bench of this Court in the case of Jayantibehn Bhikaji Thaveracha Vs Rangaben Manaji Thaveracha reported in 2003(2) GLH 306 relying on the judgment of the Apex Court held that recount of votes cannot be permitted at an interim stage in absence of cogent evidence, which is to be led in a fullfledged trial in the Election Petition. Recounting cannot therefore be ordered at an interim stage.
The Division Bench relied upon following judgments rendered in the cases of (1) N. Narayanan V. Semmalai and ors reported in AIR 1980 SC 206, (2) Vadivelu V. Sundaram and ors reported in (2000)8SCC 355, (3) Manvar Shankerbhai Mansang Vs. Pandya Shankarlal Amiram and Ors 1997(3) GLR 2478 (4) Mahant Ram Prakash Das Vs. Ramesh Chandra and ors reported in (1999) 9SCC 420 and based on these decisions, Court held that “recounting 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.
“From the above judgment, it is clear that on the basis of the allegations,recount is not permissible. It is only after when those allegations are proved by cogent evidence, the recount can be ordered. In other words, recount cannot be ordered at the interim stage.
In a recent decision in the case of Vadivelu v. Sundaram and ors., reported in (2000) 8 SCC 355, the Apex Court has specifically observed that, "recounting 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 recount 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 recount of votes. Secrecy of ballot has always been 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 recount of votes under such circumstances to do justice between the parties."
In this decision, the Apex Court has also emphasised that recounting cannot be ordered on the basis of general and bald allegations. The party seeking recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of votes.”
12. In case of Manvar Shankerbhai Mansang Vs Pandya Shankarlal Amiram and Ors (supra) the Division Bench of this Court permitted recounting at an interim stage on the ground that there was a margin of difference of only one vote.
12.1 In case of Mahant Ram Prakash Das. V. Ramesh Chandra and Ors (supra), the Apex Court has laid down that mere fact that the petitioner was defeated by a small margin of votes by itself is not a sufficient ground for recount but that fact assumes significance if prima facie case as to error in counting is made out for the Court to recount at a interim stage.
13. Thus it is imperative for the petitioner seeking recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. Court can order recount only if its is satisfied about the truthfulness of the allegations in the pleadings
14. As the first challenge to the jurisdiction of Court is concerned the very fact that there was challenge made to the maintainability of the petition by way of separate petition being Special Civil Application No. 1620 of 2012, no decision on merit or contentions has been given by the Court and petitioner has been permitted to raise those contentions in a fresh petition.
15. As can be noted from the order of 18.1.2012 the concerned Court at length has held that it has jurisdiction to act has election Tribunal. Section 24(1) of Gujarat Panchayat Act and Section 31 of Gujarat Panchayat Act, 1993 are parametric. The Court noted provision of Gujarat Civil Court Act 2005 to hold that there is no Civil Court (Junior Division) as well as Civil Court (Senior Division) and all the Courts are known to be Courts of Additional Civil Judge except the Court of Principal Civil Judge. Thus rest of the Courts of Senior Civil Judge are additional Courts. It is further held that at Bharuch the Court being that of Additional Civil Judge, the election petition can be entertained by the Principal Civil Judge, Bharuch and therefore, the Court of Principal Civil Judge would have jurisdiction to hear election petition. These findings require no interference in as much as there exists no more Courts of Civil Judge (Junior Division) or for that matter Civil Judge (senior division) as in the post. And, Court was right in holding that it has jurisdiction.
16. As noted above this was challenged by way of Special Civil Application No. 1620 of 2012 which was eventually permitted to be withdrawn in wake of the development that occurred as mentioned above. In the interim order on the basis of averments made by both the sides, the Court noted on the basis of the affidavit and the statement that this is a question of sheer mistake in calculation and therefore the same requires to be examined on getting the ballot papers produced and only on calculation the true fact can emerge. It further noted that the applicant was declared as a winner and the respondent No. 4 herein was defeated by four votes. The next date when he went to collect the certificate he was told to have received 107 votes and the respondent No.4, 111 received votes.
17. The Court straightway granted relief of recounting of votes of course there are averments and allegations made by both sides.
18. In absence of ratio laid down in this respect it would be appropriate to intervene directing recounting at an interim stage.
19. Ordinarily this Court would have interfered in the trial court granting the recounting prior to the full fledged recordance of evidence. As noted above from the well laid down ratio that the Court without examining the material on record ordinarily could not so do it.
20. However, in the order impugned, election Tribunal noted that the clear case was made out by the applicant of a wrong counting by way of necessary evidences. The affidavits were produced of the witness. The Court also noted that further allegations being in respect of wrong calculation, recounting would itself reveal the true facts and therefore, it directed the sealed envelope to be recounted.
21. After examining the sealed envelope in presence of the election Commissioner and the parties and their advocates, it noted that the respondent herein received 111 votes out of which the 11 votes were received from those which were derecognised, whereas the petitioner herein totally received 104 votes and 10 cancelled votes were found from the envelope. Thus, calculating the total number of votes it concluded that the petitioner herein has been wrongly declared a winner and the respondent was in fact was wrongly shown as having lost the election and therefore it declared the respondent as a winner and the present petitioner as having been defeated. There does not appear to be any reason for interference. Election Tribunal having acted as per the ratio laid down in the aforementioned cases where such recounting at an interim stage is made permissible from the entire gamut of facts and circumstances, this petition merits no entertainment.
(Ms. Sonia Gokani,J.) mary//