Bombay High Court
Sau. Amrapali Jeevan Gawai vs Sau. Vaishali Sumedh Shirsat And ... on 3 August, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3702 OF 2016
Sau. Amrapali Jeevan Gawai,
Aged 27 years, Occupation - Labourer,
R/o Khirpuri (Ward No.3),
Tq. Balapur, District Akola. .... PETITIONER
VERSUS
1) Sau. Vaishali Sumedh Shirsat,
Aged 27 years, Occupation - Labourer,
R/o Khirpuri (Ward No.3),
Tq. Balapur, District - Akola.
2) V.R. Tayade,
Returning Officer, Gram-Panchayat
Khirpuri (Bk.), Development Officer,
S.D.O. Office Campus, Balapur,
Tq. Balapur, District Akola.
3) Mukunda Shankar Sirsat,
Aged 41 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
4) Sadhna Samrat Sirsat,
Aged 27 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
5) Seemabai Suresh Kawalkar,
Aged 41 years, Occupation - Labourer,
R/o (Ward No.3), Khirpuri (Bk.),
Tq. Balapur, District Akola.
::: Uploaded on - 04/08/2016 ::: Downloaded on - 05/08/2016 00:31:04 :::
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6) Sunanda Devdhar Chincholkar,
Aged 55 years, Occupation - Labourer,
R/o (Ward No.2), Khirpuri (Bk.),
Tq. Balapur, District Akola.
7) Secretary,
Gram-Panchayat, Khirpuri,
Tq. Balapur, District Akola. .... RESPONDENTS
______________________________________________________________
Shri S.D. Chopde, Advocate for the petitioner,
Shri R.L. Khapre, Advocate for the respondent No.1.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 14-07-2016
DATE OF PRONOUNCING THE JUDGMENT : 03-08-2016
JUDGMENT :
Heard Shri S.D. Chopde, Advocate for the petitioner and
Shri R.L. Khapre, Advocate for the respondent No.1.
2. The present respondent No.1 filed petition under Section
15 of the Maharashtra Village Panchayats Act, 1958 (hereinafter
referred to as the "Act of 1958") in the Court of Civil Judge
challenging the decision of the Returning Officer declaring the present
petitioner as successful candidate at the election held for the seat of
Member of Gram-Panchayat on 06-08-2015. In the election petition it
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is prayed that it be declared that the present respondent No.1 is the
successful candidate as declared earlier by the Returning Officer.
In these proceedings, the present petitioner had filed an
application (Exhibit No.90) praying that the electronic voting machine
be called for verification and counting of votes. The learned trial
Judge has rejected this application by the impugned order.
The lis is between the present petitioner and the present
respondent No.1. The respondent Nos.2 to 7 are formal parties.
Considering the nature of dispute, the petition is taken up for final
disposal without issuing notices to the respondent Nos.2 to 7.
3. The elections of Gram-Panchayat Khirpuri, Tahsil -
Balapur, District - Akola are held on 04-08-2015. The present
petitioner and the respondent Nos.1 and 3 to 6 contested from Ward
No.3. In this Ward, out of the three seats, one was reserved for
Scheduled Caste Woman Candidate and one was reserved for Other
Backward Class Woman Candidate. The present petitioner and the
present respondent No.1 contested for the seat reserved for Scheduled
Caste Woman Candidate.
4. According to the claim in the election petition, the present
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respondent No.1 and the present petitioner got equal votes and
therefore, lots were drawn and the present respondent No.1 was
declared elected on 06-08-2015 at 11.00 a.m. The present respondent
No.1 has pleaded that on 06-08-2015 at about 3.30 p.m. the present
petitioner made hue and cry claiming that she is declared elected on
the seat reserved for Scheduled Caste Woman Category and therefore,
the present respondent No.1 approached the Returning Officer who
informed that the present petitioner was declared elected. According
to the present respondent No.1, on 06-08-2015, she filed an
application for obtaining certified copies of the proceedings book, she
got the certified copies on 10-08-2015 and then after noticing that the
procedure adopted by the Returning Officer was illegal and the
Returning Officer and the present petitioner played fraud and
committed mischief, the present respondent No.1 lodged complaint
with the police station and then filed the election petition.
5. In these proceedings, the present petitioner filed the
application (Exhibit No.90) contending that the present petitioner got
220 votes and the present respondent No.1 got 200 votes, however,
the Returning Officer had earlier wrongly recorded that the present
respondent No.1 and the present petitioner got 208 votes each. The
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present petitioner prayed that the electronic voting machines which
are in the custody of District Administration be called and the votes
polled in favour of the respective candidates be verified. The learned
trial Judge has rejected this application by the impugned order.
6. Shri S.D. Chopde, learned Advocate for the petitioner has
referred to the provisions of Section 15(2) and Section 15(5)(b) of the
Act of 1958 and has submitted that the Judge dealing with the petition
under Section 15 of the Act of 1958 is conferred with all the powers of
Civil Court and the Judge has the power to scrutinize and compute the
votes polled in favour of each candidate. It is submitted that the power
to compute and scrutinise the votes polled in favour of candidates
enables the Judge to call the electronic voting machines and verify the
votes polled in favour of the candidates. To support the submission,
the learned Advocate for the petitioner has relied on the judgment
given by the Division Bench of this Court in the case of Digamber
Pandurang Sawant vs. Ahmed Appa Khedekar reported in 1970
Mh.L.J. 456. It is argued that the learned trial Judge has not properly
exercised his jurisdiction conferred by Section 15(5)(b) of the Act of
1958 and has rejected the application observing that the petitioner has
not made any complaint of similar nature at the relevant stage, and
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that the evidence recorded shows that the procedure was properly
followed at the time of conducting the election. The petitioner prayed
that the impugned order be set aside, the application (Exhibit No.90)
filed by the present petitioner in the proceedings before the learned
trial Judge be allowed and the learned trial Judge be directed to call
the electronic voting machine and verify the votes polled in favour of
the petitioner and the respondent No.1.
7. Shri R.L. Khapre, Advocate for the respondent No.1 has
submitted that the claim in the election petition filed before the trial
Judge is that the present respondent No.1 was declared elected on
06-08-2015 at 11.00 a.m. but surprisingly the Returning Officer has
modified the result at 3.00 p.m. and has declared the present
petitioner elected which is illegal. It is submitted that the Returning
Officer has no power and authority to modify the result once it is
declared. It is argued that as per Section 15(2) of the Act of 1958, the
Judge dealing with the petition under Section 15 of the Act of 1958
can exercise all the powers exercisable by the civil Court including the
power to entertain and decide the counter-claim and if the petitioner
wanted to challenge the result declared by the Returning Officer
earlier (at 11-00 a.m.), the present petitioner should have filed
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counter-claim challenging the earlier decision of the Returning Officer
by which the present respondent No.1 was declared elected. It is
argued that the present petitioner has not filed the counter-claim and
has not challenged the earlier decision of the Returning Officer
declaring the present respondent No.1 elected and therefore, the claim
made by the present petitioner in the application (Exhibit No.90) is not
maintainable and the application is rightly rejected. To support the
submissions, the learned Advocate for the respondent No.1 has relied
on the following judgments :
(i) Judgment given by the Hon'ble Supreme Court in the case
of Jabar Singh vs. Genda Lal reported in AIR 1964 SC
1200(1).
(ii) Judgment given by the Hon'ble Supreme Court in the case
of Ram Autar Singh Bhadauria vs. Ram Gopal Singh
and others reported in AIR 1975 SC 2182(1).
(iii) Judgment given by the Hon'ble Supreme Court in the case
of P. Malai Chami vs. M. Andi Ambalam and others
reported in AIR 1973 SC 2077.
It is submitted that the impugned order is proper and it
cannot be said that the learned trial Judge has committed any error of
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jurisdiction. It is prayed that the petition be dismissed with costs.
8. After hearing the learned Advocates for the respective
parties, I find that the point which arises for consideration is :
"Whether the Judge trying the petition under Section 15 of the
Act of 1958 has the power to call for the electronic voting
machine and scrutinize and compute the votes polled in favour
of the candidates ?"
The learned trial Judge has not adverted to this point and
has rejected the application (Exhibit No.90) filed by the petitioner on
the ground that the present petitioner had not complained during the
course of the election procedure before the Returning Officer that the
error was committed by the Returning Officer earlier and that there
was confusion in the serial numbers of the candidates shown in the
electronic voting machine because of which the votes polled in favour
of Other Backward Class Woman Candidate were treated as votes
polled in favour of the Scheduled Caste Woman Candidate and vice-
versa. The learned trial Judge has not considered the provisions of
Section 15(5)(b) of the Act of 1958.
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9. The submission made on behalf of the present respondent
No.1, relying on the provisions of Section 15(2) of the Act of 1958 that
the grievance of the present petitioner cannot be considered as he has
not filed any counter-claim, cannot be accepted. The judgments relied
upon on behalf of the respondent No.1 are also not of any assistance to
her.
The judgments relied upon on behalf of the present
respondent No.1 are in respect of proceedings under the
Representation of the People Act, 1951 (hereinafter referred to as "the
Act of 1951") in which there is specific provision i.e. Section 97 which
disentitles the returned candidate or any other party to the election
petition to give evidence to prove that the election of the petitioner in
election petition who seeks declaration that he is elected, would have
been void, if the petitioner in election petition does not give notice to
the High Court within fourteen days from the date of commencement
of trial disclosing his intention to do so and gives security and further
security referred to in Section 117 and Section 118 of the Act of 1951.
Section 97 of the Act of 1951 reads as follows :
"97. Recrimination when seat claimed - (1) When in
an election petition a declaration that any candidate other
than the returned candidate has been duly elected is
claimed, the returned candidate or any other party may
give evidence to prove that the election of such candidate
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would have been void if he had been the returned candidate
and a petition had been presented calling in question his
election:
Provided that the returned candidate or such other
party, as aforesaid shall not be entitled to give such
evidence unless he has, within fourteen days from the date
of (commencement of the trial), given notice to (the High
Court) of his intention to do so and has also given the
security and the further security referred to in sections 117
and 118, respectively.
(2) Every notice referred to in sub-section (1) shall
be accompanied by the statement and particulars required
by section 83 in the case of an election petition and shall be
signed and verified in like manner."
Thus, in an election petition under Section 83 of the Act of
1951, if the petitioner challenges the election of the returned
candidate and seeks declaration that the petitioner is duly elected, the
returned candidate or any other party to the election petition may give
evidence to prove that the election of such candidate i.e. the petitioner
in election petition would have been void if he had been the returned
candidate and a petition would have been presented calling in question
his election. However, the proviso below sub-section (1) of Section 97
of the Act of 1951 disentitles the returned candidate or such other
party to give such evidence unless the returned candidate or such other
party gives notice to the High Court within fourteen days from the date
of commencement of the trial, that the returned candidate or such
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other party intends to prove that the election of the petitioner in
election petition would have been void. The proviso below sub-section
(1) of Section 97 of the Act of 1951 also makes it mandatory for the
returned candidate or for such other party who intends to prove that
the election of the petitioner in the election petition would have been
void, to give security and further security referred to in Section 117
and Section 118 of the Act of 1951. Sub-section (2) of Section 97 of
the Act of 1951 lays down that the notice which is referred to in sub-
section (1) of Section 97 of the Act of 1951 shall be accompanied by
the statement and the particulars required by Section 83 of the Act of
1951 and the notice has to be signed and verified in the like manner.
The judgments relied upon on behalf of the present respondent No.1
are based on the provisions of Section 97 of the Act of 1951.
10. Section 15(5)(b) of the Act of 1958 confers powers on the
Judge dealing with the petition under Section 15 of the Act of 1958 to
scrutinize and compute the votes polled in favour of each candidate.
The proposition laid down in the judgments relied upon on behalf of
the petitioner cannot be applied to the proceedings under Section 15 of
the Act of 1958 as the provisions under the two Acts are different.
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11. Section 15(5)(a) of the Act of 1958 lays down that if the
Judge, after holding enquiry, finds that a candidate at the election has
committed a corrupt practice within the meaning of Section 15(6) of
the Act of 1958, the Judge shall declare the candidate disqualified for
the purpose of that election and for fresh election as may be held
under Section 15(2) of the Act of 1958 and shall set aside the election
of such candidate if he has been elected.
Section 15(5)(b) of the Act of 1958 provides that in a case
to which Clause (a) of sub-section (5) of Section 15 of the Act of 1958
does not apply and if the validity of an election is in dispute between
two or more candidates, the Judge shall after scrutiny and
computation of the votes polled in favour of each candidate declare the
candidate who is found to have the greatest number of valid votes in
his favour as elected. The first proviso below clause (b) of sub-section
(5) of Section 15 of the Act of 1958 provides that while computing the
votes under clause (b), if the Judge finds any corrupt practice was
committed by any person in giving or obtaining it, the vote shall not be
reckoned as valid. The second proviso below clause (b) of sub-section
(5) of Section 15 of the Act of 1958 provides that after computation, if
it is found that an equality of votes exists between any candidates, one
additional vote shall be added to the total number of valid votes found
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to have been received in favour of such candidate who is selected by
draw of lot in the presence of the Judge in such manner as he may
determine.
The provisions of Section 15(5)(b) of the Act of 1958
confer power on the Judge dealing with the petition under Section 15
of the Act of 1958 to scrutinize and compute the votes polled in favour
of each candidate, if the challenge in the election petition is not on the
allegations of corrupt practice within the meaning of Section 15(6) of
the Act of 1958. In the present case, the present respondent No.1 has
not alleged that the present petitioner has committed any corrupt
practice within the meaning of Section 15(6) of the Act of 1958. In my
view, looking to the nature of dispute, it was obligatory for the learned
trial Judge to exercise the powers under Section 15(5)(b) of the Act of
1958 and to call the electronic voting machine/machines. The
judgment given in the case of Digamber Pandurang Sawant (Supra)
recognizes the power of Judge to scrutinize the votes to decide the
validity or otherwise of the votes.
12. In view of the above, the following order is passed :
(i) The impugned order is set aside.
(ii) The application (Exhibit No.90) filed by the present
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petitioner is allowed.
(iii) The learned trial Judge shall call the electronic voting
machine/machines and take further steps in the matter
according to law.
(iv) The election petition shall be decided till 26-08-2016.
(v) Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
adgokar
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CERTIFICATE
"I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment."
Uploaded by : P.M. Adgokar. Uploaded on : 04-08-2016.
P.A.
