Patel Meghaben Amitkumar vs Niruben Jaydeepbhai Khant
2022 Latest Caselaw 305 Guj

      C/SCA/19929/2021                               ORDER DATED: 11/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19929 of 2021

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                          PATEL MEGHABEN AMITKUMAR
                                    Versus
                          NIRUBEN JAYDEEPBHAI KHANT
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Appearance:
MR DHARMESH R PATEL(5592) for the Petitioner(s) No. 1
MR. YOGENDRA THAKORE(3975) for the Respondent(s) No. 1
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 3
MR ISHAN JOSHI, AGP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 11/01/2022
                                  ORAL ORDER

[1] This writ-application has been filed under Article 226 of the Constitution of India seeking the following reliefs:-

"15(A). Admit this petition;

(B). Allow this petition by issuing an appropriate writ order or direction by directing respondent no.2 to recount the votes fo Shika Group Gram Panchayat, Taluka-Dhansura, Dist-Amreli for the election held on 19.12.2021 and thereby be pleased to direct the respondent no.2 to declare fresh result of village Panchayat Election held on 19.12.2021 for Shika Group Gram Panchayat, Taluka Dhansura, District Aravalli;

(C) Pending admission and till final disposal of this petition, grant stay on the further implementation of election result declared on 21.12.2021 by the respondent no.2 for the Shika Group Gram Panchayat, Taluka Dhansura, District Arvalli, in the interest of justice;

(D) Grant such other and further relief(s) as deemed fit in the interest of justice."

[2] At the joint request of learned advocates for both the parties the present writ application is taken up for final

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disposal.

[3] The brief facts leading to the filing of the present writ-application are summarized thus :-

[3.1] It is the case of the writ applicant that the writ applicant filled candidature along with the respondent no.1 and other candidates for the post of Sarpanch of Shika Group Gram Panchayat. The State Government declared the election of the Village Panchayat to be scheduled on 19.12.2021. The election was held on 19.12.2021. The counting of the votes of the election dated 19.12.2021 was fixed on 21.12.2021, wherein the respondent No.2 was appointed as Election Officer for counting of the votes. Total voters of Shika Group Gram Panchayat are 4185, wherein 3370 voters casted their votes in the election through ballot paper. It is alleged by the writ applicant that during the counting respondent No.2 mechanically counted the votes and after completion of counting there was a difference of 05 votes between the writ applicant and the respondent No.1. The respondent No.1 was declared as elected candidate. The writ applicant sought recounting of the votes by filing written objections. Accordingly the votes were recounted in accordance with Rule 61 of the Gujarat Panchayat Election Rules, 1994 (for short 'Rules 1994') and the respondent No.1 came to be declared as successful candidate even after recounting of the votes. The result came to be declared by notification dated 21.12.2021 and

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the writ applicant was declared successful candidate. From the tenure of the writ-application the writ applicant is seeking direction against the respondent No.2 to recount the votes once again though the said procedure of recounting was undertaken in accordance with law with Rule 61 of the Gujarat Panchayat Election Rules, 1994.

[4] Learned advocate Mr.Dharmesh Patel vehemently submitted that the recounting of votes has been carried out mechanically without showing ballot paper and that the present issue does not pertain to election and therefore, it is further submitted that this Court may exercise its discretion under Article 226 of the Constitution of India and direct the respondent no.2 to recount the votes once again and declare the fresh result of election, which was held on 19.12.2021 for Shika Gram Panchayat, District Aravalli. He further prayed for implementation of election result declared on 21.12.2021, which was duly declared on recounting of votes to be stayed and the prayers as prayed for in the present writ-application be granted thereby allowing the present writ application.

[5] Learned advocate Mr.Yogendra Thakore appearing for the respondent no.1 relied upon the affidavit-in-reply filed by the respondent no.1 and submitted that recounting of the votes with respect to the election held on 19.12.2021, the result of the same has been duly declared on 21.12.2021 with respect to Shika Groupd

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Gram Panchayat and to direct the respondent no.2 to declare fresh result of election held on 19.12.2021 is not maintainable in view of statutory alternative remedy of filing election petition is available under Section 31 of the Gujarat Panchayat Act, 1993. He further submitted that 3370 voters casted their votes and two votes were casted through postal ballot paper and at the end of counting of votes the respondent no.1 received 1246 votes and the writ applicant received 1239 votes and there was a difference of 7 votes. He submitted that the recounting of votes was undertaken under Rule 61 of the Gujarat Panchayat Election Rules, 1994 and result was duly declared by way of Notification dated 21.12.2021 under Rule 28(C), which is duly produced at Page 25. The respondent No.1 after recounting of votes led by 03 votes and the respondent No.1 was declared elected as per Section 1 of the Gujarat Panchayat Election Rules.

[6] Learned advocate Ms.Roopal Patel appearing for the respondent State Election Commission also submitted that the appropriate remedy available to the writ applicant would be filing of the election petition under Section 31 of the Gujarat Panchayat Act, 1993.

[7] Heard the learned advocate Mr.Dharmesh Patel appearing for the writ applicant, learned advocate Mr.Yogendra Thakor appearing for the respondent no.1, learned advocate Ms.Roopal Patel appearing for the State

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Election Commission.

[8] I am not inclined to accept this writ application in view of the fact that there is a specific alternative remedy available to the writ applicant under the provisions of the of the Section 31 of the Gujarat Panchayat Act, 1993.

[9] Section 31 of the Gujarat Panchayat Act, 1993 provides for determination of validity of election, inquiry by Judge and procedure, which is produced thus :-

"SECTION 31 : Determination of validityof 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.

(4) If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying

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out the rules made under section 274 or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election.

Explanation :- The expression "error" in this sub-section does not include any breach of or any omission to carry out or any non- compliance with the provisions of this Act or the rules made thereunder whereby the result of the election has been materially affected.

(5) All election petitions received under sub-section (1)-

(a) in which the validity of the election of members to represent the same electoral division is in question, shall be heard by the same Judge, and

(b) in which the validity of the election of the same member elected to represent the same electoral division is in question, shall be heard together.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 the Judge shall not permit-

(a) any petition to be compromised or withdrawn, or

(b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.

(a) If on the holding of such inquiry the Judg finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of sub-section (8) he shall declare the candidate disqua fied for the purpose of that election and of such fresh election as may be held under section 33 and shall set aside the election of such candidate if he has been elected.

(b) If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate, who is found to have the greatest number of valid votes in his favour to have been duly elected:

Provided that for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it:

Provided further that after such computation if any equality of votes is found to exist between any canddates and the addition of one vote will entitle any of the candidates to be declared elected, one

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additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine.

(8) A person shall be deemed to have committed a corrupt practice-

(a) who with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person, or

(b) who, with a view to inducing any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise of individual profit or holds out any threat of injury to any person, or

(c) who hires or procures whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station:

Provided that the hiring of a vehicle or vessel by a voter or by several voters at their joint cost for the purpose of conveying him or them to or from any such polling station shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or any tram car or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station shall not be deemed to be a corrupt practice under this clause.

Explanation-1. A corrupt practice shall be deemed to have been committed by a candidate, if it has been committed with his knowledge and consent, or by a person who is acting under the general or special authority of such candidate with reference to the election.

Explanation-2. "promise of individual profit" does not include a promise to vote for or against any particular measure which may come before a panchayat for consideration, but subject thereto, includes a promise for the benefit of the person himself or any person in whom he is interested.

Explanation-3. The expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise, and whether used for drawing other vehicles otherwise."

Under Section 31 of the Gujarat Panchayat Act, 1993

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the writ applicant has specific alternative remedy to call in question the election held for the Sarpanch of Gram Panchayat and ask for re-poll of the said election.

[10] Article 243(O) of the Constitution of India reads thus:-

"243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243-K, shall not be called in question in any court;

(b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."

As referred above Article 243(O)(b) of the Constitution provides for 'no election to any panchayat shall be called in question except by election petition presented to such authority and in such manner as is provided by or under any law under the legislature of the State.

[11] It is apposite to refer to the position of law as laid down by this Court as well as the Hon'ble Apex Court as produced thus :-

(a) The order dated 1.2.2012 passed in Special Civil Application No.18949 of 2011, paragraphs 4 to 7 read thus:-

4. I have heard learned advocate for the petitioner as also the learned AGP for respondent No.1 to 4. I am not inclined to accept this petition because I find that there is specific

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statutory alternative remedy available to the petitioner for challenging the election of Sarpanch of Gram Panchayat as also for seeking repoll of the election held on 29.12.2011.

5. Section 31 of Gujarat Panchayats Act, 1993 provides for determination of validity of election, inquiry by Judge and procedure. Under Section 31 of the said Act, the petitioner has got specific alternative remedy to call in question election held for the Sarpanch of Gram Panchayat and to ask for repoll of said election.

6. Clause (b) of Article 243O of the Constitution of India, provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

7. As stated above, there is specific remedy available to the petitioner under Section 31 of the Gujarat Panchayats Act, 1993 read with Gujarat Panchayats Election Rules, 1994. The Hon'ble Supreme Court in case of Boddula Krishnaiah and another Vs. State Election Commissioner, A.P. and others reported in AIR 1996 Supreme Court 1595 has held that "Once an election process has been set in motion and as the election is conducted, the remedy is available for redressal of grievance in connection of the election, is available under the statute itself and the High Court would not be justified in issuing any direction in respect of election, though the petition may be maintainable before the High Court." In the said case also, the question arose for conducting of the fresh poll for about 20 persons and the High Court had entertained the petition and had given direction for fresh poll for all those 20 persons. Thus, in view of specific provisions under Section 31 of the Gujarat Panchayats Act read with Gujarat Panchayats Election Rules and Article 243O (b) of the Constitution and in view of the decision of the Hon'ble Supreme Court, I am not inclined to accept the petition. The petition is devoid of merits and same is required to be dismissed. Hence, petition is dismissed.

[b] The Hon'ble Supreme Court in the case of Laxmibai vs. Collector Nanded and Others, reported in 2020 (12) SCC 186 in paragraphs 38 to 43 has held thus :-

37. In the judgment reported as N. P. Punnuswami v. The Returning Officer 11 it was held by this Court that the only remedy provided was by election petition to be presented

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after the election was over and even the High Court had no jurisdiction under Article 226 of the Constitution of India during the intermediate period. It was held that the ground of rejection of nomination paper cannot be urged in any other manner, at any other stage and before any other court. It further held that under the election law, the rejection of a nomination paper can be used as a ground to call election in question before the Authority prescribed by law in terms of Article 329 of the Constitution of India. This Court arrived at the following conclusions:

"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are commit ted while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the' 'election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."

38. The 73rd Constitutional Amendment inserted Part IX in the Constitution of India. Article 243(O) of the Constitution of India as inserted provides that no election to any panchayats shall be called in question except by an election petition presented to such authority and in such manner as provided for by or under any law made under the legislature of the State. Article 243-O of the Constitution of India reads as under:

"243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243-K, shall not be called in question in any court;

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(b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."

39. In terms of such constitutional provisions, Section 15A was inserted by Maharashtra Act No. 21 of 1994. The dispute in the present appeals does not pertain to election to either House of the Parliament but to a local body. The constitutional bar is contained in Article 243-O of the Constitution of India in furtherance of which Section 15A was inserted in the year 1994. Section 15A of the 1959 Act reads thus:-

"15A. Bar to interference by Court in electoral matters.-No election to any Panchayat shall be called in question except in accordance with the provisions of Section 15; and no court other than the Judge referred to in that Section shall entertain any dispute in respect of such election."

40. A Constitution Bench in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. 12 examined the N.P. Ponnuswami's case and held that Article 329 of the Constitution of India starts with a non obstante clause that notwithstanding contained in this Constitution, no election to either house shall be called in question except by an election petition. Therefore, Article 226 of the Constitution of India stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed out but left unexplored in Ponnuswami. It was held that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage. The Election Tribunal has powers to give relief to an aggrieved candidate.

41. In respect of elections to a local body, this Court in a judgment reported as S. T. Muthusami v. K. Natarajan & Ors. 13 , approved Full Court Judgment of Madhya Pradesh High Court reported as Malam Singh v. The Collector, Sehore 14 , wherein it was held that there is no constitutional bar to the exercise of writ jurisdiction in respect of election to local bodies such as Municipalities, Panchayat and the like but it is desirable to resolve the election dispute speedily through the machinery of election In Malam Singh's case, the Madhya Pradesh High petitions. Court held as under:

"7. The Act, therefore, furnishes a complete remedy for

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the particular breach complained of. The Legislature prescribed the manner in which and the stage at which the rejection of a nomination paper can be raised as a ground to call the election in question. We think it follows by necessary implication from the language of Section 357(1) that this ground cannot be urged in other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enact- ing a provision like Section 357(1) and in setting up an election tribunal. The question of improper rejection of a nomination paper has, therefore, to be brought up before the election tribunal by means of an election petition after the conclusion of the election.

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17. Lastly, their Lordships stated that the law of election in this country does not contemplate that there should be two attacks on matters connected with election proceedings, in the following passage:--

"In my opinion, to affirm such a position would be contrary to the scheme of ......... the Representation of the People Act, which as I shall point out later, seems to lie that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance, Which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question."

18. There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, stated:--

"...... though no legislature can impose limitations

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on these constitutional owners it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."

42. This Court again examined the question in respect of raising a dispute relating to an election of a local body before the High Court by way of a writ petition under Article 226 of the Constitution of India in a judgment reported as Harnek Singh v. Charanjit Singh & Ors. 15 . It was held as under

"15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alterna- tive remedy is available therefor. (See Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., 2 (2005) 8 SCC 242: 005 (7) SCALE 290.)

16. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.

17. In C. Subrahmanyam Vs. K. Ramanjaneyullu and Others : (1998) 8 SCC 703, a three-Judge Bench of this Court observed that a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act."

43. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved

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person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference."

[c] The Division Bench of this Court observed in the order dated 11.01.2017 in Special Civil Application No.6 of 2017 paragraph 9 read thus:-

"9. In a writ petition the various dispute questions which would arise in the process of considering the validity of result of an election or the prayer for recounting cannot be entertained. In view of the foregoing observations, in out opinion, the present petition deserves to be dismissed. Hence, the present petition is dismissed."

[12] The writ applicant filled candidature to the post of Sarpanch for Shika Group Gram Panchayat alongwith others. The election to the post of Sarpanch for Shika Group Gram Panchayat came to be held on 19.12.2021 and the result to the said election came to be declared on 21.12.2021. The respondent No.1 came to be declared as elected candidate as per the result duly declared dated 21.12.2021. It appears that the writ applicant objected to

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the said result by filing written objections and sought for recounting of the votes as provided under Rule 61 of the Gujarat Panchayat Election Rules, 1994. Pursuant to the objections the recounting of the votes was undertaken in accordance with the Rule 61(a) of the Rules, 1994. Once again the respondent No.1 came to be declared as elected candidate. The writ applicant is aggrieved by the recounting of the votes which was undertaken by the competent authority under Rule 61 of the Rules 1994.

[12.1] Clearly the writ applicant is seeking re-counting of votes which are already recounted. The contention of the writ applicant is that the said relief as sought for by the writ applicant cannot be said to be affecting the election process or election result and, therefore, the writ application would not be maintainable.

In view of this Court, there would be various disputes that would arise for process of considering validity of result of the election or the prayer recounting of the votes already recounted would result in the change of election result which certainly can be said to be affecting the election and, therefore, the writ applicant can avail the remedy under Section 31 of the Gujarat Panchayat Act, by filing a election petition.

[12.2] In view of this Court, the discretion under Article 226 of the Constitution of India is not required to be exercised. Further there is a statutory remedy available to

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the writ applicant under Section 31 of the Gujarat Panchayat Act read with the Gujarat Panchayat Election Rules, 1994. Article 243(O) of the Constitution of India also provides that no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the legislature of the State.

In view of the ratio laid down by this Court as well as by the Hon'ble Supreme Court, this Court is not inclined to entertain the present writ application and exercise its discretion under Article 226 of the Constitution of India. It is, however, open for the writ applicant to avail the alternative statutory remedy available to the writ applicant. In view of the aforesaid directions, the present petition is not entertained and the same is rejected.

[12.3] In view of above, since the statutory remedy is exhausted by filing election petition under Section 31 of the Gujarat Panchayat Act, 1993 this Court is not inclined to exercise its extraordinary discretion under Article 226 of the Constitution of India.

[12.4] With the aforesaid directions, the present application is not entertained and the same is rejected.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED