Sapnaben Maheshbhai Vasava vs State Of Gujarat
2023 Latest Caselaw 8275 Guj

Gujarat High Court

Sapnaben Maheshbhai Vasava vs State Of Gujarat on 29 November, 2023

Author: Umesh A. Trivedi

Bench: Umesh A. Trivedi, Samir J. Dave

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    C/SCA/20219/2022                           JUDGMENT DATED: 29/11/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 20219 of 2022
                          With
     R/SPECIAL CIVIL APPLICATION NO. 20259 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE

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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 or any order made
     thereunder ?

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              SAPNABEN MAHESHBHAI VASAVA
                          Versus
                     STATE OF GUJARAT
======================================
Appearance:
SCA No.20219 of 2022
MR BRIJESH K RAMANUJ(9898) for the Petitioner(s) No. 1
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Petitioner(s)
No. 1
MR TRUPESH C. KATHIRIYA, ASSISTANT GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 1


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  C/SCA/20219/2022                           JUDGMENT DATED: 29/11/2023

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MR JIGAR G GADHAVI(5613) for the Respondent(s) No. 10,9
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5,6,7,8
SCA No.20259 of 2022
MR BRIJESH K RAMANUJ(9898) for the Petitioner(s) No. 1
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Petitioner(s)
No. 1
MR JAY MEHTA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DELETED for the Respondent(s) No. 1
MR JIGNESHKUMAR P PANDAV(5613) for the Respondent(s) No.
9
NOTICE SERVED BY DS 2-8
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
       and
       HONOURABLE MR. JUSTICE SAMIR J. DAVE

                        Date : 29/11/2023

                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)

[1.0] RULE returnable forthwith in each of the petitions. Mr. Tupesh C. Kathiriya, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent no.1 - State and Mr. Jigar Gadhavi, learned advocate waives service of notice of rule on behalf of respondents nos.9 and 10 in Special Civil Application No.20219 of 2022. Mr. Jay Mehta, learned Assistant Government Pleader waives service of notice of rule on behalf of respondent no.1 - State and Mr. Jigar Gadhavi, learned advocate for Mr. Jigneshkumar Pandav, learned advocate waives service of notice of rule on behalf of respondent no. 9 in Special Civil Application No.20259 of 2022.

[2.0] Both these petitions are filed challenging the order

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C/SCA/20219/2022 JUDGMENT DATED: 29/11/2023

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impugned passed by the Principal Civil Judge, Umarpada dated 22.09.2022 in Election Petition Nos.1 of 2021 and 2 of 2021 filed under Section 31 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as 'the Act') directing not only sealing of the ballot boxes but fixing the day for recounting of votes, that too, without conducting any inquiry or evidence being led before it.

[3.0] Though election to the post of Sarpanch in both these petitions is challenged before the same Election Tribunal, it pertains to election of a Sarpanch of different villages falling within the jurisdiction of same Election Tribunal. As the issue raised in these two petitions is one and the same, we deem it appropriate to determine the same by this common judgment and order.

[4.0] Heard Mr. Keval Brahmbhatt, learned advocate for the respective petitioner in both the petitions as also Mr. Jigar Gadhavi, learned advocate for the contesting respondents in both the petitions. We have also heard Mr Trupesh Kathiriya, learned Assistant Government Pleader for respondent no.1 in Special Civil Application No.20219 of 2022 and Mr. Jay Mehta, learned Assistant Government Pleader for respondent no.1 in Special Civil Application No.20259 of 2022.

[5.0] Mr. Keval Brahmbhatt, learned advocate for the respective petitioner, submitted that even assuming that the Election Tribunal has jurisdiction to order recounting of votes or to undertake exercise of recounting of votes, it could not

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C/SCA/20219/2022 JUDGMENT DATED: 29/11/2023

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have been done without conducting any inquiry or evidence being led before it. Drawing attention of the Court to Section 31 of 'the Act' and relying on the decision of the Division Bench of this Court in the case of Mayurkumar Shivrambhai Vasava Vs. Bipinbhai Champakbhai Vasava rendered on 01.09.2022 in Special Civil Application No.17022 of 2022, it is submitted that though the sealing of the ballet boxes and keeping it in custody of the Hon'ble Court is not objected to, the order passed by the tribunal conducting recounting of votes prior to leading of evidence is objectionable and could not be permitted, and therefore, he has requested that the part of the impugned orders, in both the petitions, be quashed and set aside.

[6.0] As against that, Mr. Jigar Gadhavi, learned advocate for the contesting respondents, in his usual fairness, attempted to support the order but unable to distinguish the decision referred to hereinabove in the case of Mayurkumar Shivrambhai Vasava (Supra), he submitted that since the learned Judge is prima facie satisfied from the pleadings itself, the impugned orders passed by him directing recounting of votes may not be interfered with.

[7.0] Learned Assistant Government Pleaders submitted that while conducting counting of votes, all the procedure prescribed under 'the Act' as also the Gujarat Panchayat Rules, 1994 have been followed by the authority and there is no any illegality or irregularity being shown to the tribunal, though State has not challenged that orders, the orders passed by the

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C/SCA/20219/2022 JUDGMENT DATED: 29/11/2023

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Election Tribunal is not sustainable.

[8.0] Having heard the learned advocates for the appearing parties and considering the documents annexed with the petitions, the impugned respective orders as also the decision in the case of Mayurkumar Shivrambhai Vasava (Supra), it is very clear that even if the Election Tribunal were to recount the votes, it could not have been ordered prior to conducting an inquiry or leading of any evidence. From the impugned orders, it appears that within no time, as soon as, the Election Petitions are filed and written statements are submitted by the respondents, the learned Judge passed the respective impugned orders calling for the ballet boxes in a sealed condition through the Court Commissioner and ordered recounting of votes. As such, from the provisions of Sub- Section (7) of Section 31 of 'the Act' as also the impugned decision and the precedent in case of Mayurkumar Shivrambhai Vasava (Supra), it is very clear that in absence of any evidence being led and a satisfaction being recorded by the Election Tribunal about any irregularity in counting of votes, no recounting can be ordered by the Election Tribunal.

[9.0] In view thereof, there is no option left before this Court except to quash and set aside the impugned orders, qua it relates to, recounting of votes before leading of evidence. Therefore they are hereby quashed and set aside in respective petitions. However, the remaining directions in impugned orders remain as it is and it is not touched at all. After leading evidence, the Election Tribunal may determine the cases in

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accordance with law. Since more than two years have been passed after filing of Election Petitions, it is expected that the Tribunal shall determine it as expeditiously as possible and preferably within a period of six months from the date of receipt of the order of this Court.

[10.0] In view thereof, both these petitions stand partly allowed. Rule is made absolute accordingly in each of the petitions to the aforesaid extent.

(UMESH A. TRIVEDI, J.)

(SAMIR J. DAVE, J.)

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