IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9945 of 2001 with SPECIAL CIVIL APPLICATION NO 9946 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ Versus ELECTION OFFICER OF VISNAGAR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9945 of 2001 MR PK JANI for Petitioner No. 1 Mr. A.D. Oza, GP with Mr. DP Joshi, AGP for Respondent No. 1 MR BA VAISHNAV for Respondent No. 2 1. Special Civil Application No. 9946 of 2001 MR PK JANI for Petitioner No. 1 Mr. A.D. Oza, GP with Ms. DS Pandit, AGP for Respondent No. 1 MR BA VAISHNAV for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE H.K.RATHOD Date of decision: 20/09/2002 COMMON CAV JUDGEMENT (Per : MR.JUSTICE H.K.RATHOD) The observations made by the apex court in case of Chanda Singh v. Choudhary Shiv Ram Verma, [AIR 1975 SC 403] are relevant to the facts of the present case. The observations made by the apex court in the aforesaid decision are therefore reproduced as under before adverting to the facts of the case before hand. " A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here,to ask for a recount. Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." Heard learned advocate Mr. P.K. Jani for the petitioners and Mr. A.D. Oza, learned G.P. with Mr. D.P.Joshi and Ms. D.S. Pandit, learned AGPs for respondent NO. 1 and Mr.B.A. Vaishnav, learned advocate for respondent No.2 in these two petitions. In these two petitions, the facts are different but the questions raised in both the petitions are same. Therefore, both the matters have been heard together. Therefore, considering the common questions involved in these two petitions, they are decided by this common judgment. 1. Brief facts of special civil application No. 9945 of 2001 filed by PRAHLADBHAI KHEMCHANDDAS PATEL are to the effect that the petitioner is the resident of Kansa; the petitioner is the voter of the said village; that the election commission issued a notification for the purpose of holding the elections of different Taluka panchayats in the State of Gujarat. Accordingly, a notification with respect to the holding of the elections of Taluka panchayat, Visnagar came to be published by the Secretary of the Election Commission, State of Gujarat vide notification dated 28th August, 2000. According to the petitioner, Visnagar Taluka Panchayat is allotted various seats and one of such seats is for village Kansa which is called Seat No. 11 Kansa-1. Accordingly, notice for the same came to be published. According to the petitioner, he filled in the form as a candidate belonging to the Indian National Congress for the purpose of contesting the election of Seat No.11 of Kansa-1 of Visnagar Taluka Panchayat. Respondent No.2 herein had filled in his nomination paper as a candidate belonging to the Bharatiya Janata Party. According to the petitioner, the election of the Taluka Panchayat,Visnagar came to be held on 24th September, 2000 in which so far as seat No. 1 of Kansa - 1 is concerned, there were nine booths. According to the petitioner, in all, there were 5100 voters for this seat out of which in nine booths, 5098 votes were polled out of which 112 votes were declared invalid. According to the petitioner, he secured 2488 votes and the respondent No.2 herein secured 2502 votes and, thus, there was a margin of 14 votes between the petitioner and respondent No.2 herein. According to the petitioner, at the time of counting of the votes, since there were large scale irregularities having been committed by respondent No.2 and his supporters with the help and aid of respondent No.1 and his counting agents, the petitioner submitted an application to the returning officer for recounting of the votes, immediately after the counting so that the recounting can be effected immediately. According to the petitioner, the election officer, by order dated 29th September, 2000, rejected the application for recounting of votes and in view of that, respondent no.2 herein came to be declared elected as the candidate from I Kansa Seat of Visnagar Taluka Panchayat and in view of that, the petitioner filed Election Petition No.1 of 2000 in the Court of the learned Civil Judge, J.D., Visnagar under section 3 of the Gujarat Panchayats Act,1993 within the period of fifteen days from the date of declaration of the result as envisaged under the said Act, on 5th October, 2000. Alongwith the said election petition, the petitioner also enclosed a list of documents. The petitioner also filed an application on 10th January, 2001 wherein it has been requested to place into custody the ballot papers and accordingly, the ballot papers were ordered to be kept in custody of the Court vide order passed by the Election Tribunal below Exh. 18. Thereafter, in the proceedings, the petitioner also filed affidavits of Election Agents from Exh. 21 to 28. In the affidavits filed by the Election Agents, it has been stated that the counting of votes was done in such a manner that it was not possible to find out in which lot the votes were put and differentiation of votes could not be properly made. It has also been stated in the said affidavits filed by the Election Agents that Shri Prahladbhai Patel, the MLA belonging to the B.J.P. and Shri Jeshbhai Patel, the District President of the B.J.P. were moving around the place and were trying to influence the Election Officer/Returning Officers. However, according to the petitioner, the learned Civil Judge,J.D., Visnagar, by his order dated 29th September, 2001,dismissed the said Election Petition and the said order dated 29th September, 2001 passed by the Election Tribunal is under challenge in this petition. 2. Alongwith the petition, the petitioner has produced notification of election dated 28th August,2000; notice of election dated 28th August, 2000; copy of the result of the election dated 29th September, 2000; copy of an application for recounting of votes addressed to the Election Officer dated nil has been produced at annexure-D. The petitioner has also produced the decision given by the Election Officer on his application for recounting of votes on 29th September,2000. The petitioner has also produced copy of election petition filed before the learned Civil Judge,J.D., Visnagar dated 5.10.2000. List of candidate in respect of Kansa-1 has also been produced at annexure-F to the petition. The petitioner has also produced list of documents produced before the tribunal. The petitioner has also produced copy of the application dated 10th January, 2001 wherein request has been made by the petitioner to take in custody the election literature and ballot papers. The petitioner has also produced copies of the affidavits of the Election Agents which were produced by the petitioner before the Election Tribunal. The petitioner has also produced two circulars dated 25th August,1999 and 1st January,2000 issued by the State Election Commission and the decision of the Election Tribunal dated 29th September, 2001. 3. Initially, on behalf of the election officer, affidavit in reply dated 4th July,2002 has been filed and, thereafter, the election officer has filed another affidavit in reply on 14th August,2002. Copy thereof has been served upon the petitioner and the other respondent. 4. Brief facts of special civil application No. 9946 of 2001 filed by NARMADABEN BABUBHAI PATEL are to the effect that the petitioner is the resident of Denap; the petitioner is the voter of the said village; that the election commission issued a notification for the purpose of holding the elections of different Taluka panchayats in the State of Gujarat. Accordingly, a notification with respect to the holding of the elections of Taluka panchayat, Visnagar came to be published by the Secretary of the Election Commission, State of Gujarat vide notification dated 28th August, 2000. According to the petitioner, Visnagar Taluka Panchayat is allotted various seats and one of such seats is for village Denap which is called Seat No. 5, Denap. Accordingly, notice for the same came to be published. According to the petitioner, he filled in the form as a candidate belonging to the Indian National Congress for the purpose of contesting the election of Seat No.5, Denap of Visnagar Taluka Panchayat. Respondent No.2 herein had filled in his nomination paper as a candidate belonging to the Bharatiya Janata Party. According to the petitioner, the election of the Taluka Panchayat, Visnagar came to be held on 28th September, 2000 in which so far as seat No. 5, Denap is concerned, in all, there were 6379 voters for this seat out of which 5243 votes were polled. According to the petitioner, she secured 2550 votes and the respondent No.2 herein secured 2558 votes and, thus, there was a margin of only 8 votes between the petitioner and respondent No.2 herein. According to the petitioner, at the time of counting of the votes, since there were large scale irregularities having been committed by respondent No.2 and his supporters with the help and aid of respondent No.1 and his counting agents, the petitioner submitted an application to the returning officer for recounting of the votes, immediately after the counting so that the recounting can be effected immediately. According to the petitioner, the election officer, by order dated 29th September, 2000, partly allowed the application for recounting of votes and in view of that, respondent no.2 herein came to be declared elected as the candidate from 5, Denap Seat of Visnagar Taluka Panchayat and in view of that, the petitioner filed Election Petition No.2 of 2000 in the Court of the learned Civil Judge, J.D., Visnagar under section 3 of the Gujarat Panchayats Act,1993 within the period of fifteen days from the date of declaration of the result as envisaged under the said Act, on 9th October, 2000. Alongwith the said election petition, the petitioner also enclosed a list of documents. The petitioner also filed an application on 10th January, 2001 wherein it has been requested to place into custody the ballot papers and accordingly, the ballot papers were ordered to be kept in custody of the Court vide order passed by the Election Tribunal below Exh. 18. Thereafter, in the proceedings, the petitioner also filed affidavits of Election Agents from Exh. 22 to 27. In the affidavits filed by the Election Agents, it has been stated that the counting of votes was done in such a manner that it was not possible to find out in which lot the votes were put and differentiation of votes could not be properly made. It has also been stated in the said affidavits filed by the Election Agents that Shri Prahladbhai Patel, the MLA belonging to the B.J.P. and Shri Jeshbhai Patel, the District President of the B.J.P. were moving around the place and were trying to influence the Election Officer/Returning Officers. However, according to the petitioner, the learned Civil Judge,J.D., Visnagar, by his order dated 29th September, 2001, dismissed the said Election Petition and the said order dated 29th September, 2001 passed by the Election Tribunal is under challenge in this petition. 5. Alongwith the petition, the petitioner has produced notification of election dated 28th August,2000; notice of election dated 28th August, 2000; copy of the result of the election dated 29th September, 2000; copy of an application for recounting of votes addressed to the Election Officer has been produced. The petitioner has also produced the decision given by the Election Officer on his application for recounting of votes on 29th September,2000. The petitioner has also produced copy of election petition filed before the learned Civil Judge,J.D., Visnagar dated 5.10.2000. List of candidate in respect of Denap has also been produced. The petitioner has also produced list of documents produced before the tribunal. The petitioner has also produced copy of the application dated 10th January, 2001 wherein request has been made by the petitioner to take in custody the election literature and ballot papers. The petitioner has also produced copies of the affidavits of the Election Agents which were produced by the petitioner before the Election Tribunal. The petitioner has also produced two circulars dated 25th August,1999 and 1st January,2000 issued by the State Election Commission and the decision of the Election Tribunal dated 29th September, 2001. 6. Initially, on behalf of the election officer, affidavit in reply dated 4th July,2002 has been filed and, thereafter, the election officer has filed another affidavit in reply on 14th August,2002. Copy thereof has been served upon the petitioner and the another respondent. 7. In these two petitions, common submissions have been made on behalf of the petitioners by learned advocate . He has relied upon section 31 of the Gujarat Panchayats Act, 1993 and Rule 60 and 61 of the Gujarat Panchayats Election Rules,1994. Sub section (1),(2) and (3) of section 31 and rule 60 and 61 of the said Rules, material for the purpose of determination of these two petitions are reproduced as under: "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 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." Rule 60 and 61 of the Gujarat Panchayats Elections Rules, 1994 reads as under: "60. Counting of votes.- (1) Subject to such general or special directions, if any, given by the election commission in this behalf, the ballot papers taken out of all ballot boxes used in an electoral division shall be mixed together and then arranged in convenient bundles and scrutinized by the counting assistance and the supervisors under the supervision of the returning officer. (1) The returning officer shall reject a ballot paper if- (a) it bears any mark or writing by which the voter can be identified; or (b) it bears no mark at all or, to indicate the vote bears a mark elsewhere than on or near the symbol of one of the candidates on the face or the ballot paper or it bears a mark made otherwise than with the instrument supplied for that purpose; or (c) votes are given on it in favour of more than one candidate; or (d) the mark indicating the vote thereon is placed in such manner as to make it doubtful as to which candidate the vote has been given; or (e) it is a spurious ballot paper; or (f) it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (g) it bears a serial number, or is of a design, different from the serial numbers, or as the case may be, design, of the ballot papers authorized for use at the particular polling station; or (h) it does not bear both the mark and the signature which it should have borne under the provisions of sub rule (1) and sub rule (2) of rule 40: Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particulars candidate clearly appears from the way the paper is marked. (3) Before rejecting any ballot paper under sub rule (2) the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. (4) The returning officer shall endorse on every ballot papers which he rejects, the word "Rejected" and the grounds of the rejection in abbreviated form either in his own hand or by means or a rubber stamp and shall initial in ink such endorsement. (5) All ballot papers rejected under this rule shall be bundled together. (6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot papers shall be opened and no such paper shall be counted. (7) After the completion of counting the returning officer shall record in the result sheet in Form 27 the total number of votes polled by each candidate and announce the same. 61. Recount of votes.- (1) After an announcement of the total number of votes, polled by a candidate has been made under sub rule (7) of rule 60, a candidate or in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he deemed such recount. (2) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in to if it appears to him to be frivolous or unreasonable. (3) Every decision of the returning officer under sub rule (2) shall be in writing and contain reason therefore. (4) If the returning officer decide under sub rule (2) to allow a recount of votes either wholly or in part, he shall - (a) do the recounting in accordance with rule 58 or, as the case may be, 60; (b) amend the result sheet in Form 27 to the extent necessary after such recount; and (c) announce the amendment so made by him. (5) After the total number of votes polled by each candidate has been announced under sub rule (7) of rule 60 or sub rule (4), the returning officer shall complete and sign the result sheet in Form 27 and no application for recount shall be entertained thereafter. Provided that no step under this sub rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub rule (1)." Learned advocate Mr. P.K. Jani has submitted that after the election was over, the petitioner has immediately approached the Election Officer and has submitted an application for recount of votes on the ground that there was a marginal difference in both the cases and In case of petitioner in special civil application no. 9946 of 2001, the difference was of 8 votes. He, therefore, submitted that in such cases, it is the duty of the Election Officer to grant such application of the petitioners for recount of votes but the Election Officer Has rejected such application in case of the petitioner in special civil application no. 9945 of 2001 and in case of petitioner in special civil application no. 9946 of 2001, only partial recount was granted by the ELECTION Officer. He submitted that while rejecting the prayer for recount of votes in one case, the Election Officer has not assigned any reasons and in doing so, the Election Officer has committed breach of rule 61 sub clause (3). He has also submitted that there was mal practice committed by respondent no.2 in the election and, therefore, the application submitted by the petitioner for recount of votes ought to have been granted by the Election Officer. He has also submitted that there was no harm or prejudice to the respondent No.2 if the application of the petitioner for recount of votes was granted. According to his submission, recount of votes would not have adversely affected the either side and the marginal difference having sufficient apprehension in the mind of the petitioner and, thereafter, just to remove the doubt, it was the duty of the Election Officer to grant an application for recount of votes but the election officer has rejected such application in one case without any application of mind and in another case, has granted partial recount of votes. He has also challenged the order on the ground that under section 31 of the Gujarat Panchayats Act, 1993, scope of inquiry has been specified by the statutory provisions made under section 31(3) of the Act and that detailed inquiry has not been carried out by the Election Tribunal and, therefore, the order passed by the Election Tribunal is also illegal and contrary to the statutory provisions. He has also submitted that the inquiry as contemplated under section 31 sub clause (3) would mean detailed inquiry which would require detailed evidence and right of cross examination of the respective parties but the tribunal has not followed the procedure prescribed under section 31 of the Act; the tribunal has not considered each and every contentions raised by the petitioner in the election petitions and has dismissed the Election Petition filed by the petitioner and rest of the contentions raised by the petitioner have remained undecided and, therefore, the election tribunal has not applied his mind in respect of the contentions raised by the petitioner in the election petition and, therefore, the order passed by the