Bombay High Court
Jagarao Raising Ade And Another vs Shri Narayan Harising Pawar And ... on 27 August, 2015
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2228 OF 2014
PETITIONERS: 1. Jagarao Raising Ade, Aged about 47
years, occu. Agriculturists, R/o
Sawargaon Teli, Tah. Lonar, District
Buldana.
2. Sau. Raubai Bhikaji Landge, Aged
about 47 years, occu. Household R/o
Sawargaon Teli, Tah. Lonar, District:
ig Buldana.
-VERSUS-
RESPONDENTS: 1. Shri Narayan Harising Pawar, Aged
about 63 years, Occu. Agriculturist,
R/o Sawargaon Teli, Tah. Lonar,
District : Buldana.
2. Sau. Jijabai Chindhuba Landge, Aged
about 51 years, Occu. Agriculturist,
R/o Sawargaon Teli, Tah. Lonar,
District : Buldana.
3. Returning Officer of the Election of
Village Panchayat Sawargaon
Teli/Tahasildar, Lonar, Tah. Lonar,
District : Buldana.
4. Secretary, Gram Panchayat
Sawargaon Teli, Tah. Lonar, District :
Buldana.
5. Collector, Buldana, District Buldana.
Shri K. V. Deshmukh, Advocate for the petitioners.
Shri A. B. Moon Advocate for respondent Nos.1 and 2.
Smt. B. P. Maldhure, Asstt. Government Pleader for respondent Nos.3
and 5.
Respondent No.4 served.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 03-07-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 27-08-2015.
ORAL JUDGMENT :
1. In view of notices for final disposal, the learned Counsel
have been heard at length by making the Rule returnable forthwith.
2. This writ petition takes exception to the judgment dated
15-4-2014 passed by the learned Civil Judge, Junior Division, Lonar in
Election Petition No.1/2012 whereby the said election petition filed by
respondent Nos.1 & 2 has been partly allowed and after setting aside the
election of the petitioners, fresh elections have been ordered.
3. General elections to elect members of Gram Panchayat
Sawargaon were held on 21-10-2012 for Ward No.2. Three members
were to be elected. One seat was reserved for Scheduled Caste
(women), one seat was reserved for candidates from the Other
Backward Class category and the third seat was for Open (women). The
results were declared on 22-10-2012. The petitioner No.1 was declared
elected from the Other Backward Class category seat while the petitioner
No.2 was declared elected on a seat reserved for Scheduled Caste
(women).
4. The respondent Nos.1 & 2 being aggrieved filed an election
petition under Section 15 of the Maharashtra Village Panchayats Act,
1958 (for short the said Act) challenging the election of the petitioners.
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In the election petition, it was pleaded that after the counting of votes
was over, respondent No.1 was declared elected having polled 243 votes
and petitioner No.2 was also declared elected having polled 271 votes. It
was then pleaded that after respondent Nos.1 & 2 went to their village,
it was learnt that the Returning Officer in collusion with the petitioners
had recounted votes and had declared the petitioners elected. It was
pleaded that this was contrary to the provisions of the said Act.
The Returning Officer filed his reply stating that respondent
Nos.1 & 2 had never been declared elected. When it was noticed in the
primary list that the names of the candidates had been incorrectly
mentioned, necessary corrections were made after which the result was
declared. The petitioners also filed their reply claiming that they had
received higher votes and they had been rightly declared as elected.
5. The parties led evidence before the trial Court. The
respondent No.1 examined himself. He was also cross-examined. In his
cross-examination, he stated that his son had acted as his representative
when the votes were counted. He further stated that the counting of
votes took place in a transparent manner and that the document at
Exhibit-39 was the rough note prepared by the Returning Officer. He
also admitted that in the presence of his son, the sequence of names that
had been shown in Exhibit-39 was corrected after which Exhibit-40 came
to be prepared.
The Returning Officer also examined himself and stated
that respondent Nos.1 & 2 had not been declared elected. He stated that
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the document at Exhibit-37 had been published by the Election
Commission as a dummy ballot paper.
The petitioner No.1 also examined himself. He stated that
he had not raised any objection during the process of counting of votes.
6. During the trial of the election petition, the learned Judge
of the trial Court directed production of the Electronic Voting Machine
along with the memory chip. The same was accordingly produced and
the total number of votes as well as respective votes polled by the
candidates were also verified.
ig Thereafter the parties were heard through their Counsel. It
was noted by the trial Court that in the document at Exhibit-37 the
sequence of the names of the candidates was not as stipulated by the
document at Exhibit-56 which was the ballot paper on the basis of which
the votes had been polled. A finding was then recorded that it was not
proved that the Returning Officer had in collusion with the petitioners
declared them elected. Thereafter it was held that by recounting the
votes the Returning Officer had exceeded his jurisdiction and had
wrongly corrected the results. Relying upon the decision in Smt. Sarla
vs. State of Maharashtra, AIR 2001 Bombay 159, the learned Judge set
aside the election of the petitioners and directed that fresh elections be
held to elect members for the posts reserved for Scheduled Caste
(women) and Other Backward Class category. This judgment is
impugned in the present writ petition.
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7. Shri K. V. Deshmukh, learned counsel appearing for the
petitioners submitted that the learned Judge of the trial Court was not
justified in setting aside the election of the petitioners. It was submitted
that respondent Nos.1 & 2 had never been declared elected and the
Returning Officer before declaring results on noticing that the sequence
of names of the candidates had been wrongly mentioned in the
consolidated statement had corrected the same. It was urged that there
was no evidence on record to indicate either that the results had been
declared declaring respondent Nos.1 & 2 as victorious nor was there any
evidence that at the behest of the petitioners the necessary corrections
were made. It was submitted that the Returning Officer on noticing a
mistake in the sequence of the names of the candidates had merely
rearranged the names as per the ballot paper and, therefore, no illegality
was committed by the Returning Officer. It was then urged that the
Returning Officer had the implied power to make necessary corrections
on noticing such mistake prior to declaration of the results. The same
would not amount to altering the result inasmuch as respondent Nos.1 &
2 had never been declared elected. The learned Counsel referred to
certain decisions, reference to which would be made at a later stage. It
was, therefore, submitted that the order passed by the trial Court can
not be sustained and the same deserves to be set aside.
8. On the other hand, Shri A. B. Moon, learned Counsel
appearing for respondent Nos.1 & 2 supported the impugned order.
It was submitted that the Returning Officer was neither empowered nor
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was he justified in correcting the sequence of the names of the
candidates especially when it was evident from the record that the
document at Exhibit-39 was prepared as per dummy ballot paper. It was
submitted that having declared respondent Nos.1 & 2 duly elected, no
change could have been made in the said result by the Returning Officer.
It was submitted that the consolidated statement was not brought before
the Court and, therefore, interference by the trial Court was justified. He
placed heavy reliance on the judgment of the Division Bench in
Smt. Sarla (supra). It was then submitted that the trial Court did not
grant any declaration in favour of respondent Nos.1 & 2 and on the
contrary, fresh elections had been directed to be held. It was open for
the petitioners to again contest the election and get elected. It was,
therefore, submitted that there was no reason to interfere with the
impugned judgment.
Smt. B. P. Maldhure, learned Assistant Government Pleader
appearing for respondent Nos. 3 and 5 supported the impugned order.
9. I have carefully considered the respective submissions and
I have gone through the documents filed on record. In the election
petition filed under Section 15 of the said Act, it has been pleaded that
after the process of counting, the Returning Officer had declared that
respondent No.1 had got 243 votes and respondent No.2 had got 271
votes. Both had been declared elected. After the results were declared,
the respondent Nos.1 & 2 went to their village but after about 1 to 1½
hour, the supporters of respondent Nos.1 & 2 came to know that the
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Returning Officer in collusion with the petitioners had recounted the
votes and had declared them elected. It is on this basis that the election
of the petitioners was challenged being contrary to the mandatory
provisions of law.
The stand of the Returning Officer is that respondent Nos. 1
& 2 were never declared elected. The mistake that had occurred in the
sequence of the names of the candidates which were not as per the
sequence as mentioned in the ballot unit had been corrected. Similar is
the stand of the petitioners.
10. The evidence led by the parties indicates the following:-
(a) As per the respondent No.1, his son was his authorized
counting agent. Other counting agents of other candidates were also
present. The counting had taken place in a transparent manner. The
document at Exhibit-39 was a rough statement. It was necessary to give
the names of the candidates as per the sequence mentioned at the ballot
unit.
(b) The respondent No.1 admitted that Exhibit-40 had been
signed by his son and the representatives of other candidates. The same
was done after verifying all documents.
(c) The respondent No.1 admitted that Exhibit-37 which was a
dummy ballot paper had been published by respondent No.1. Though
the Election Officer had issued a certificate to respondent No.1 that he
was duly elected, the same could not be produced before the Court. He
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also admitted that at the venue of the counting itself, he had got
information that he had lost the election.
(d) The Returning Officer admitted that Exhibit-37 had been
published by the Election Commission.
(e) The petitioner No.1 had not taken any objection during the
course of counting of votes.
11. Amongst the relevant exhibited documents is the document
at Exhibit-37 titled as 'dummy ballot paper'. The same, however,
reproduces names of "Jai Sevalal Panel". Only the names of respondent
Nos.1 & 2 and another candidate from the open category (women)
belonging to "Jai Sevalal Panel" have been mentioned. The names of the
petitioners do not find place in said dummy ballot paper.
Exhibit-39 is the copy of Annexure-25 dated 22-10-2012
with an endorsement by the Returning Officer that as the sequence of
the names of the candidates mentioned therein had been changed,
recounting had been done.
Exhibit-40 is again a copy of Annexure-25 also dated
22-10-2012 duly signed by the Returning Officer and the representatives
of the candidates showing names of the candidates as per the ballot unit.
Exhibit-56 is the authenticated copy of the ballot unit that
was produced by the Tahasildar on the directions of the trial Court.
12. At this stage, it is necessary to refer to certain relevant
provisions of the Bombay Village Panchayat Election Rules, 1959 (for
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short the said Rules). Rule 32 of the said Rules relates to counting of
votes and Rule 32(4) thereof refers to preparation of a consolidated
statement by the Returning Officer regarding the total number of votes
polled by each candidate. Rule 34 of the said Rules relates to declaration
of results by the Returning Officer. The sequence in which results are to
be declared are mentioned in Rule 34. If a seat is reserved for Scheduled
Castes or Scheduled Tribes, such results have to be declared first and
then the results of seats reserved for women have to be declared.
Thereafter the results of unreserved seats have to be declared. Rule 35
of the said Rules relates to recounting of votes.
13. The question, therefore, that requires consideration is
whether the Returning Officer could have corrected the sequence of the
names of the candidates which according to him had been wrongly
mentioned in Exhibit-39. Before considering said qustion, the
observations of the Supreme Court in Chandavarkar Sita Ratna Rao Vs.
Ashalata S. Guram, 1986 Mh L.J. 955 in para 20 can be taken into
consideration :
"20. It is true that in exercise of jurisdiction under
Article 227 of the Constitution the High Court could
go into the question of facts or look into the evidence
if justice so requires it, if there is any misdirection in
law or a view of fact taken in the teeth of
preponderance of evidence."
14. Exhibit-56 is the copy of ballot unit produced by the
Tahasildar and the voters had exercised their franchise through the
electronic voting machine as per the sequence of the candidates
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mentioned at Exhibit-56. Said document indicates the manner in which
the names of the candidates have been placed. At Sr. Nos.1 & 2, the
candidates belonging to the Scheduled Caste (women) category have
been shown. At Sr. Nos.3 & 4, the candidates belonging to the Other
Backward Class category have been shown while at Sr. Nos. 5 & 6, the
candidates belonging to the Open (women) category have been shown.
If Exhibit-56 is compared with Exhibit-39, it would be clear that at
Exhibit-39 the sequence of the names of the candidates indicates that at
Sr. Nos.1 & 2 those from the other backward category have been
mentioned. At Sr. Nos.3 & 4 those from the Scheduled Caste (women)
have been mentioned while at Sr. Nos.5 & 6 the candidates from the
Open (women) category have been shown. Rule 34 (1) specifies the
manner in which sequence of results have to be declared. It is,
therefore, apparent that same were to be declared as per the sequence of
the candidates shown at Exhibit-56 which was the sequence in which the
voters had cast their votes. As it was found by the Returning Officer,
according to his deposition, that such sequence was wrongly mentioned
in Exhibit-39, the same was immediately corrected by preparing the
document at Exhibit-40. Another pertinent aspect is that in so far as
Column No.3 at Exhibits 39 & 40 is concerned, there is no change
whatsoever and only the name of the candidates has been arranged as
per sequence of the names shown in the ballot unit at Exhibit-56.
15. The evidence on record indicates that the necessary
correction in the sequence of names of the candidates was done in the
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presence of the representatives of all the candidates. The same was done
suo motu by the Returning Officer on noticing the mistake. The
deposition of respondent No.1 indicates that when he was present at the
voting center itself, he got knowledge that he had lost in the elections
(para 13 of his deposition). This statement, therefore, falsifies his own
case that respondent Nos.1 & 2 had gone back to their village after the
results were declared and when they were celebrating their victory, they
got knowledge that the petitioners had been declared elected. Similarly,
absence of any certificate to show respondent No.1 to be duly elected is
also a relevant factor. It is further admitted by respondent No.1 that it
was necessary to show the names of the candidates as per the sequence
of names contained in the ballot unit and the corrections were done in
presence of all the representatives. In fact, the trial Court has also
recorded a finding that there was no evidence on record to come to the
conclusion that the Returning Officer in collusion with the petitioners
had altered the results of the election.
16. The statement of the Returning Officer that the document
at Exhibit-37 was supplied by the Election Commission as a dummy
ballot paper cannot be accepted for the simple reason that same does not
contain list of all the contesting candidates. It only refers to the name of
a panel of which respondent Nos.1 & 2 were the candidates. Though
much was sought to be made of aforesaid admission by the Returning
Officer by the Counsel for respondent Nos.1 & 2, considering the
document at Exhibit-56, it cannot be held that the document at Exhibit-
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37 was a dummy ballot paper supplied by the Election Commission.
17. The word "recounting" used by the Returning Officer on
Exhibit-39 does not appear to be appropriate. In fact, there is no
evidence of any recounting being done or any such request being made
by any of the candidates. It was merely rearrangement of the sequence
of the names of the candidates to bring the same in tune with the ballot
unit at Exhibit 56. The total number of votes polled are unchanged and
similarly, the votes polled by each candidate as reflected in Column No.3
of documents at Exhibits 39 & 40 are unchanged. It appears that use of
the word "recounting" has led to aforesaid conclusion. The expression
'recounting' would have to be understood in terms of provisions of Rule
35 of the said Rules which contemplates the procedure by which the
recounting of votes has to be done.
18. The learned Counsel for the petitioners relied upon the
decision in Maruti Bandu Patil vs. Village Panchayat Sidhnerli and others
1981 Mh.L.J. 255 and urged that under the doctrine of implied power,
the Returning Officer was entitled to correct his mistake. In the facts of
the present case, it has been found that immediately on noticing the
error in the sequences of names of the candidates, necessary correction
has been made. Thus, the implied power to correct an error within the
framework of the Rules and prior to declaration of results would have to
be granted to the Returning Officer. This is more so when the result has
not been shown to be declared in terms of Rule 34 of the said Rules.
19. The judgment in the case of Smt. Sarla (supra) is clearly
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distinguishable on facts. In said case, after the results were declared as
per Rule 34(1) of the said Rules, the Returning Officer on the basis of a
notification issued by the State Election Commission modified the result
and declared another candidate as elected. It was in that background
that it was held that such power was not vested with the Returning
Officer. In the present case, it has been found that the results were not
at all declared as per Rule 34 (1) of the said Rules and on noticing that
the sequence of the candidates was not as per the sequence mentioned
in the ballot unit (Exhibit-56) necessary re-arrangement of the names of
the candidates was made. Moreover, in Smt. Sarla (supra), the aggrieved
candidates had approached the High Court by filing writ petitions while
in the present case, the adjudication is in proceedings under Section 15
of the said Act. The ratio of the aforesaid decision cannot, therefore, be
made applicable to the facts of the present case.
20. In the present case, it has been held that the sequence of
candidates on the ballot unit was not clear. This finding in para 27 of
the impugned judgment cannot be sustained in view of the document at
Exhibit-56 which was a copy of verified ballot paper produced by the
Tahasildar and its authenticity was not in doubt. Further, no declaration
was granted in favour of respondent Nos.1 & 2 and instead, fresh
elections ordered. In the light of the findings recorded herein above, it is
clear that the trial Court misdirected itself while setting aside the
election of the petitioners. In fact, there was no legal and valid ground
to set aside the election of the petitioners. In the absence of any such
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ground, the impugned order cannot be sustained.
21. Accordingly, the following order is passed:
(1) The judgment dated 15-4-2014 passed in Election Petition
No.1/2012 is set aside. Instead, said election petition stands dismissed.
(2) Rule is made absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
