SCA/27374/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27374 of 2007 For Approval and Signature : HONOURABLE MR. JUSTICE D.A.MEHTA HONOURABLE MR. JUSTICE Z.K.SAIYED 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 ? 4. Whether this case involves a substantial question of law as 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 ? ========================================================= RAMESHKUMAR BHIMJIBHAI DHAMEL - Petitioner(s) Versus MADHUBHAI BECHAR PARMAR & 3 - Respondent(s) ========================================================= Appearance : MR SP MAJMUDAR for Petitioner(s) : 1,MR YJ PATEL for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 4. RULE SERVED BY DS for Respondent(s) : 1, MS NISHA PARIKH, AGP, for Respondent(s) : 2 - 4. MR NV ANJARIA for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 09/05/2008 SCA/27374/2007 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. This petition challenges the Order 24.7.2007 made by the Court of Principal Civil Judge, Muli, in Election Petition No.2 of 2007 whereby the petitioner's Election Petition has been rejected on the ground of being barred by limitation. 2. The petitioner, a resident of Shekhpur Village, Taluka Muli, District Surendranagar, participated in the election of Gram Panchayat held on 10.12.2006. It is the say of the petitioner that at the time of declaration of election result on 12.12.2006 the Election Officer declared the petitioner to be a successful candidate. However, on 28.12.2006 when the Collector, Surendranagar, the designated Election Commission Officer, declared the result whereunder respondent No.1 herein was declared as elected to the post of Member, Ward No.7, Shekhpur Village Panchayat, the petitioner came to know that the petitioner was declared to have lost the election. As according to the petitioner the counting of votes was not correct : though the petitioner had secured 101 votes, while the respondent No.1 had secured 48 votes, 10 votes having been declared invalid, respondent No.1 was wrongly declared as elected and, therefore, the petitioner challenged the validity of election by preferring Election Petition No.2 of 2007. Vide impugned order dated 24.7.2007 under Application Ex.16 it has been found that the petition is barred by limitation considering the fact that the Election Petition had been preferred by the petitioner on 5.1.2007. 3. On behalf of the petitioner Mr. Majmudar, learned Advocate has submitted that in light of Section 31 of the SCA/27374/2007 3/11 JUDGMENT Gujarat Panchayats Act, 1973 (“the Act”) read with Rule 63 of the Gujarat Panchayat Election Rules, 1994 (“the Rules”) the declaration of the result cannot be said to be complete unless and until the requirement of latter part of sub-Rule (1) of Section 63 of the Rules is shown to have been complied with. In other words, the submission was that mere compliance with earlier part of Sub-Rule (1) of Rule 63 of the Rules is not sufficient for declaration to be complete and therefore the period of 15 days stipulated by Section 31 of the Act for preferring Election Petition shall have to be considered from the date of affixing of the election result on the Notice Board of the Panchayat Office as required by Sub-Rule (2) of Rule 63 of the Rules. That was the date, namely, 28.12.2006 when the petitioner came to acquire the knowledge that it was respondent No.1 who was declared elected and not the petitioner. In support of the submissions made, reliance has been placed on a decision of this Court rendered on 18.9.2007 in Special Civil Application No.13959 of 2007 in the case of VAJIR MENABEN SHANKARBHAI v/s. ELECTION COMMISSION THROUGH THE ELECTION COMMISSIONER & ORS. with special reference to Paragraph Nos. 14, 15 and 16 of the said Judgment. 4. Section 31 of the Act as is material for the present purpose reads as under : “31. Determination of validity of election, inquiry by Judge and procedure :- (1) If the validity of any election of a member of 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 SCA/27374/2007 4/11 JUDGMENT 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.” Rule – 63 of the Rules as is material for the present, reads as under : “63. Declaration and publication of result : (1) when the counting of votes has been completed, the returning officer shall in absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in Form 28 by affixing a signed copy of the result in the form on the notice board in his office. He shall also send a copy of the same to - (a) The Election Commission : (b) The Secretary to Government, Panchayat and Rural Housing Department. (c ) The Development Commissioner; (d) the District Election Officer; (e) the District Panchayat (f) the Taluka Panchayat (g) the village panchayat in respect of village panchayat election of a Sarpanch (2) The copy of to the District Panchayat and village panchayat shall be displayed on the notice board in panchayat office. 5. On plain reading of the aforesaid provisions it is apparent that the declaration envisaged by Rule 63 of the Rules is the point of time immediately after counting of votes SCA/27374/2007 5/11 JUDGMENT has been completed, when the Returning Officer is bound to forthwith declare the result of the election in Form – 28 by affixing a signed copy of the result in the prescribed form on the Notice Board of his Office. The mandate under the Rule terminates then considering the use of Full Stop when the said sentence is shown to be complete. The subsequent requirement of the Returning Officer also sending a copy of Election result to seven different entities is an additional requirement. It is not possible to agree with the contention of the learned Advocate that unless and until even the said requirement is fulfilled the declaration is not complete. If the aforesaid contention is accepted it would amount to reading words in the provisions. Sub-Rule – (1) of Rule – 63 of the Rules is in two parts : the first part is, after counting of votes is complete, immediate declaration of the result in the prescribed form by affixing a signed copy of the result on the Notice Board of the Office of the Returning Officer; the second part is, sending a copy of the result to seven different entities mentioned from (a) to (g). The act of sending a copy cannot be equated with making a declaration of result. Once the signed copy of the statutory form has been affixed on the Notice Board of the Office of the Returning Officer the declaration is complete. The latter part of the provision does not use the word “declare”, but, uses the term “also send a copy”, meaning thereby, after declaration is complete the copy of result has to be sent. The action of sending a copy cannot be equated with declaring the result. The two are entirely different acts even when one considers the plain meaning of the words employed. 6. Furthermore this interpretation of Rule – 63(1) of the SCA/27374/2007 6/11 JUDGMENT Rules is borne out by the provisions of Rule-60(7) read with Rule 61(1) of the Rules. The aforesaid Rules, when read in conjunction, make it abundantly clear that the moment the counting is over if the candidate or his agent has any grievance as to the procedure adopted for counting or the result announced on completion of the counting, Rule : 61(1) of the Rules specifically requires that the candidate or the counting agent may call upon the Election Officer to recount the votes either wholly or in part, stating the grounds on which the demand for recounting is made. In other words under Sub-Rule (7) of Rule – 60 the result of election is required to be announced after filling up the result sheet in statutory form No.27 the total number of votes cast and the total number of votes polled by each candidate. Thus, on that day the result of the election is known to the candidate and/or his agent and there is no question of the candidate thereafter claiming that the candidate did not have knowledge till the point of time a copy was served on any of seven different entities stipulated in latter part of Sub-Rule (1) of Rule – 63 of the Rules. Rule-62 of the Rules provides for a situation where equal votes are found to have been cast in favour of two candidates and the procedure to be adopted by the Returning Officer in such circumstances. Thus, when one reads the entire procedure laid down in the Rules in conjunction with all the Rules the declaration of the result provided under Rule – 63 of the Rules is declaration of the result which has already been announced under Rule-60 (7) of the Rules, subject to the requirement of recounting, if any. 7. In aforesaid set of facts and circumstances of the case it is thus apparent that the petitioner at no point of time SCA/27374/2007 7/11 JUDGMENT exercised the rights available to the petitioner under Rule – 61(1) of the Rules on completion of counting and announcement of the result under Sub-Rule (7) of Rule 60 of the Rules. For this purpose one may refer to the annexures annexed to the Affidavit dated 29.11.2007 of Respondent No.2, the Election Officer, who has placed on record Form No.27 whereunder out of total votes polled, namely, 159, 10 have been declared to be cancelled and the petitioner has been shown to have received 48 votes, as against that 101 votes were received by respondent No.1. Form No.28 also gives complete details whereunder the name of respondent No.1 is shown as successful candidate for Ward No.7 of Shekhpur village. The name of the petitioner nowhere appears in Form No. 28. In the circumstances, there are two sets of averments, one of the petitioner stating that the petitioner had been declared to be a successful candidate and the other by the Election Officer with supporting documents. In the circumstances, in absence of any evidence in support of the averments made by the petitioner it is apparent that the version of respondent No.2 which is backed by the documentary proof merits acceptance. 8. However, for the present it is not necessary to dwell any further in relation to this because on merits the Court is not required to record any findings, the petition being only against the order of subordinate Court whereunder the Election Petition has been rejected as being barred by limitation. 9. In so far as filing of Election Petition is concerned there is no dispute on facts. The result of the election had been SCA/27374/2007 8/11 JUDGMENT declared on 12.12.2006 when the counting was over by completion of necessary formalities as per Form No.27 and Form No.28 which was duly affixed at the office of the Returning Officer. The Election Petition was preferred on 5.1.2007. In light of what is recorded hereinbefore the stand of the petitioner that the petitioner derived knowledge about the election result only on 28.12.2006 when the election result was declared in form No.31 by respondent No.3, the District Collector, Surendranagar, would not extend the period of limitation statutorily prescribed under Section 31 of the Act. The subordinate Court was, therefore, justified in rejecting the Election Petition filed by the petitioner on the ground of limitation. 10. It is necessary to take note of the fact that the Division Bench of this Court in the case of ARUNBHAI MANGABHAI NAYAK v/s. RAMESHBHAI BHULABHAI NAYAK & ORS., reported in 2002 (3) GLR 2321 has specifically dealt with the requirement of Section 31 of the Act read with Rule 63 of the Rules and stated that - “The exercise of declaration is complete upon declaration of result by affixing a signed copy of the result in the prescribed form on the Notice Board in the office of the Returning Officer.” 11. The reliance on unreported decision by the learned Advocate for the petitioner in the case of VAJIR MENABEN SHANKARBHAI (Supra) cannot carry the case of the petitioner any further. In the said case the counting was over on 12.12.2006, the result was declared in presence of the contesting candidates as well as their respective polling SCA/27374/2007 9/11 JUDGMENT agents. Subsequently when the meeting of Gram Panchayat was convened on 23.1.2007 even the petitioner who was declared to have lost the election was sent a Notice for attending the meeting and it was in that circumstance that the petitioner made inquiries. Upon such inquiries it was found that the result declared by the Returning Officer was not found to be correct by the Election Commission and the petitioner had been declared to be elected by the Election Commission at that point of time. It is in the aforesaid circumstances that the Court made observations in Paragraph Nos. 14, 15 & 16 without departing from the law laid down by this Court in the case of ARJUNBHAI MANGABHAI NAYAK (supra). In fact in Paragraph No.9 the Court has noted that it was on account of dereliction of duty on the part of the Election Officer that the election results were subverted, and hence it was laid down, in exercise of jurisdiction under Article 226 of the Constitution, that an unscrupulous person may take advantage of a wrong action of the Election Officer and to obviate that it was held that the date of acquiring the knowledge by the person concerned would be the material date. Furthermore, the Court has noted that there was no affidavit of the Returning Officer stating that Form No.28 had been affixed on the Notice Board of the Office of the Returning Officer on the date of counting and declaration. In the present case the affidavit-in-reply is specific. Hence, the said decision turned on its own peculiar facts and would not in any manner whatsoever lay down any proposition contrary to the earlier decision of the Division Bench of this High Court on an interpretation of the provision of Section 31 read with relevant Rules. 12. The view adopted by this Court derives support from the SCA/27374/2007 10/11 JUDGMENT Apex Court Judgment in the case of YOUARAJ RAI AND OTHERS v/s. CHANDER BAHADUR KARKI reported in (2007) 1 SCC 770, wherein it is laid down : “30. Upholding of submission that the limitation for filing an election petition should be reckoned not with reference to the date on which the candidate whose election is challenged was declared elected, but with reference to the date on which the last candidate was declared elected at a general election would not only make the provision cumbersome and contrary to the provisions of the Act, particularly against the scheme of amendments introduced in 1956 and 1961 but would also make the starting point of limitation uncertain, indefinite and fluctuating. Such construction would require complete details of all returned candidates of Legislative Assembly of a State. Moreover, where the challenge is to an election of a Member of House of People (Lok Sabha), full particulars in different constituencies throughout the country must be before the Election Tribunal (the High Court). The Tribunal also is bound to inquire into such particulars with a view to ascertaining whether the election petition filed by the petitioner is or is not within the period specified in Section 81 of the Act. Again, in case of dispute or contest on the issue of limitation, the Election Tribunal is required to call for and inspect records of all constituencies. Unless compelled, a court of law would not interpret a provision in such a way which would frustrate legislative intent and make the provision unworkable and impracticable. 32. Finally, the interpretation sought to be suggested by the respondents is otherwise reasonable, just and equitable inasmuch as it has nexus with the “cause of action”. When a defeated candidate or an elector has grievance against an act of declaring a particular candidate successful at the election, his cause of action arises as soon as such declaration is made. He, therefore, can challenge that act. He is not concerned with other SCA/27374/2007 11/11 JUDGMENT constituencies or candidates. He cannot be allowed to join his cause of action with declaration of results in other constituencies or returned candidates in those constituencies. (Chandrakant Shukla v. Maharaja Martand Singh).” 13. In the circumstances, both on facts and in law, there is no error in the Order made by the subordinate Court. In the result the petition does not merit acceptance and is accordingly rejected. Rule discharged. There shall be no order as to costs. (D.A.MEHTA, J.) (Z.K.SAIYED, J.) sas