Gujarat High Court

Amratben Takhatsingh Chauhan vs The District Election Officer And ... on 11 January, 2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21406 of 2023

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AMRATBEN TAKHATSINGH CHAUHAN Versus THE DISTRICT ELECTION OFFICER AND COLLECTOR DASKROI ========================================================== Appearance:

MS SRUSHTI A THULA(5014) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,4 HL PATEL ADVOCATES(2034) for the Respondent(s) No. 3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

Date : 11/01/2024

CAV ORDER

1. Heard learned senior counsel Mr.Yatin Oza

assisted by learned advocate Ms.Srushti Thula for the

petitioner and learned senior counsel Mr.Shalin Mehta

assisted by learned advocate Mr.Maharshi Patel for

H.L.Patel Advocates for respondent No.3.

2. At the joint request of learned advocates for

both the parties, this petition is taken up for final

disposal.

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3. By way of the present petition filed under

Articles 226 and 227 of the Constitution of India, the

petitioner has challenged the order dated 14.12.2023

passed by the learned District Judge, Ahmedabad (Rural)

in Civil Appeal No.43 of 2023, whereby the recounting of

votes ordered by the Election Tribunal in Election Petition

No.1 of 2022 is stayed.

4. The brief facts leading to the present petition

are as under:-

4.1 The election of the local bodies were declared

by virtue of notification dated 22.11.2021 and the voting

took place on 19.12.2021. The counting of votes were

scheduled on 21.12.2021. The present respondent No.3 was

declared as an elected candidate in the said election.

4.2 The petitioner filed an Election Petition No.1 of

2022 before the learned Principal Civil Judge, Ahmedabad

challenging the election process and the candidature of

respondent No.3. Vide order dated 09.11.2023, the learned

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6th Additional Senior Civil Judge, Ahmedabad (Rural)

ordered recounting of votes. The said order was challenged

by respondent No.3 by preferring an appeal before the

learned 8th Additional District Judge, Ahmedabad (Rural)

being Misc. Civil Appeal No.43 of 2023. Exhibit 5

application in the aforesaid Misc. Civil Appeal was partly

allowed by 9th Additional District & Sessions Judge,

Ahmedabad (Rural) on 14.12.2023 and stayed the order

dated 09.11.2023 passed by the learned 6 th Additional

Senior Civil Judge, Ahmedabad (Rural). It was further

directed that the order dated 14.12.2023 will not come in

the way of the learned trail Court to direct the recounting

of votes after the end of the inquiry. Against the said

order, the petitioner has came before this Court praying

for quashing and setting aside the order dated 14.12.2023

passed by the learned District Judge, Ahmedabad (Rural)

in Misc. Civil Appeal No.43 of 2023.

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5. Learned senior advocate Mr.Yatin Oza for the

petitioner has submitted that the election for the post of

Sarpanch of Dhamtavan Gram Panchayat was scheduled on

22.11.2022 and voting took place on 19.12.2021. The

counting of votes was scheduled on 21.12.2021, and

thereafter, respondent No.3 was declared as a wining

candidate.

5.1 It is further submitted that there were

irregularities committed during the process of election. It is

submitted that the presence of some unauthorized

unnamed people, at the time of counting of votes found

by the petitioner and those unauthorized persons had

started the counting of votes. Hence, the recounting of

vote was requested, and the same request was rejected by

the officers. After the results were declared, the present

petitioner filed Election Petition No.1 of 2022 before the

Additional Senior Civil Judge, Ahmedabad (Rural). On

09.11.2023, the learned trial Court directed recounting of

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votes of the election of Sarpanch of Dhamtavan Gram

Panchayat.

5.2 It is submitted that though the order was passed

on 09.11.2023, the respondent No.3, did not challenge the

said order for a month, and after a long time, the said

order came to be challenged by respondent No.3 by way

of an appeal being Misc. Civil Appeal No.43 of 2023. It is

further submitted that the respondent No.3 moved an

application Exhibit 5 in the said Mics. Civil Appeal. In the

meantime, the respondent No.3 approached this Court vide

Special Civil Application No.20695 of 2023 praying for stay

of the order dated 09.11.2023. However, the said

Application was withdrawn by respondent No.3 on

13.12.2023.

5.3 It is further submitted that thereafter, on

14.12.203, the learned District Court stayed the order

dated 09.11.2023 directing recounting of votes. Against

this order, the present petitioner is before this Court.

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5.4 Learned senior counsel for the petitioner has

submitted that the learned District Court has no

jurisdiction to entertain the appeal and there is no

provision of law for statutory appeal to be preferred

against the order of the learned trial Court.

5.5 Learned senior counsel for the petitioner has

placed on reliance Section 31(1) of the Gujarat Panchayats

Act, 1993 which is reproduced hereinunder:-

"31 Determination of validity of 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.

5.6 It is further submitted that under the said Act,

no Appeal is provided before the learned District Court.

Since the order dated 14.12.2023 is without jurisdiction,

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the same cannot stand in the eye of law. Hence, prayed

for quashing and setting aside the order.

5.7 Learned senior counsel has placed reliance upon

the following decisions in support of his submissions:-

(i) In the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Ors. passed by the Hon'ble Supreme Court on 17.04.2003.

(ii) In the case of Shobhabai Narayan Shinde Vs. Divisional Commissioner, Nashik Division, Nashik reported in 2022(0) AIJEL-SC 68175.

(iii) In the case of Somabhai Kacharadas Patel Vs. Patel Becharbhai Shambhubhai reported in 1980(0) AIJEL-HC 211539.

(iv) In the case of Robinson Chimanbhai Chauhan Vs. Secretary reported in 2018(0) AIJEL-HC 239861.

(v) In the case of the Associated Press through its General Manager Vs. Laurinda Keys Long & Another passed by the Hon'ble Delhi High Court in Writ Petition (Civil) No.3783 of 2008.

6. On the other hand, learned senior counsel

Mr.Shalin Mehta for respondent No.3 has supported the

order dated 14.12.2023 and vehemently objected against

the interference in the findings of the learned District

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Court.

6.1 Learned senior counsel Mr.Mehta has relied

upon Sub-section 3 of Section 31 of the Gujarat

Panchayats Act, 1993 and has pointed out that the

unsuccessful candidate can prefer an Election Petition

before the learned Civil Judge within a period of 15 days

after the date of declaration of the result. It is submitted

that once the Election Petition is filed, the procedure as

prescribed under Sub-section 3 of Section 31 of the Act,

has to be undergone. Once the unsuccessful candidate

prefers an Election Petition, the Civil Judge shall hold an

inquiry and after the inquiry, if the Court deems necessary

pass an order, either confirming or amending the declared

result or setting aside the election.

6.2 Thus, the submission of learned senior counsel

for respondent No.3 is that Section 31 of the said Act,

envisages the challenge by unsuccessful candidate and the

process thereafter. Following the provisions of law, the

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learned District Court has stayed the order of learned trial

Court which has straightway ordered recounting of votes.

6.3 It is submitted that the learned trial Court has

stayed the order dated 09.11.2023 but has clearly held

that the staying of the order shall not restrict the rights of

the learned trial Court in holding the inquiry. Thus,

submission of the learned advocate for respondent No.3 is

that there is no illegality committed by the learned District

Court in staying the order. Therefore, the present petition

being devoid of merits and the same may be dismissed.

6.4 Learned senior counsel for respondent No.3 has

placed reliance upon the following decisions in the case of

(i) Nilaben Ashwinbhai Ka. Patel Vs. Meghaben Datteshkumar Amin & 2 passed by this Court in Special Civil Application No.8762 of 2017;

(ii) Jatniben Rameshbhai Buriya Vs. Election Officer and Dy. Taluka Development Officer passed by this Court in Special Civil Application No.7345 of 2022;

(iii) Meghaben Datteshkumar Amin Vs. State Election Commission reported in 2018(0) AIJEL-HC 239243;

(iv) Dharmin Bai Kashyap Vs. Babli Sahu reported in 2023(0) AIJEL-SC 72195;

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(v) Dharmin Bai Kashyap Vs. Babli Sahu and Others reported in (2023) 10 SCC 461.

7. While various questions including the

maintainability of an Appeal From Order against the order

passed by the learned Additional Senior Civil Judge would

arise for consideration, in view of the catena of decisions

and ratio laid down, this Court is not inclined to enter

into the merits of such question at this stage. The dispute

is in narrow compass.

8. Section 31 of the Act deals with the

determination of validity of election and the inquiry to be

held and the procedure to be followed by the Judge. It

also deals with the situation when a question is brought

regarding the validity of any election of a member of

Panchayat, the unsuccessful candidate may file an Election

Petition before the Civil Judge within 15 days after the

date of declaration of results. Sub-section 3 and 7(a) & (b)

of Section 31 of Act is reproduced hereinunder:-

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"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.

7(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.

7(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 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

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be, selected by lot drawn in the presence of the Judge in such manner as he may determine

9. In the present case, it is an admitted position

that the unsuccessful candidate - petitioner challenged the

result by preferring an Election Petition before the learned

Senior Civil Judge, Ahmedabad (Rural) and the learned

Civil Judge granted recounting of votes vide order dated

09.11.2023. It is also an undisputed fact that the Election

Petition No.1 of 2022 is pending, and the inquiry is yet to

be completed. The learned District Court while considering

the provisions of Section 31(3) of the said Act and also

considering Rule 61 of the Gujarat Panchayats Election

Rules 1994, took the view that the order of recounting

was without holding proper inquiry, and without providing

an opportunity to the parties to prove or disprove the

allegations regarding alleged illegality or irregularity in the

process of election as well as in the counting of votes.

10. The issue involved in the present petition is no

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more res-integra in the decision rendered by the Division

Bench of this Court in the case of Nilaben Ashwinbhai Ka.

Patel Vs. Meghaben Datteshkumar Amin & 2 others passed in

Special Civil Application No.8762 of 2017 on 27.04.2017.

The Division Bench in paras 7, 8 and 9 has observed as

under:-

7. Section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act") makes provision for "Determination of validity of election, inquiry by Judge and procedure". Sub-section (1) thereof provides that 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 the date of the declaration of the results of the election, present an election petition to the Civil Judge (Junior Division) and, if there is no Civil Judge (Junior Division), then to the Civil Judge (Senior Division), having ordinary jurisdiction in the area within which the election has been or should have been held, for the determination of such question. Sub-section (3) thereof provides that 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. Sub-section (3) further provides that 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. Clause (a) of sub-section (7) of section 31 of the Act provides that if on the

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holding of such inquiry, the Judge finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of subsection (8), he shall declare the candidate disqualified 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. Clause (b) of sub-section (7) of section 31 of the Act, which is relevant for the present purpose, postulates that 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.

8. In the present case, it is an admitted position that the same falls within the ambit of clause (b) of sub-

section (7) of section 31 of the Act, viz., the validity of the election is in dispute between two or more candidates which needs scrutiny and computation of the votes. Therefore, in view of the provisions of clause (b) of sub-section (7) of section 31 of the Act, the learned Judge is required to carry out a scrutiny and computation of the votes recorded in favour of each candidate, and thereafter declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. The first proviso to sub-section (7) of section 31 provides 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 and the second proviso thereto provides that after such computation if any equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the

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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.

9. Considering the nature and scope of the proceedings before the learned Principal Civil Judge, Borsad, the court is of the view that the interests of justice would best be served if the impugned order is set aside and the learned Principal Civil Judge is requested to conclude the proceedings of the election petition keeping in view the provisions of clause (b) of subsection (7) of section 31 of the Act, and pass an order under sub-section (3) of section 31 within a period of six weeks from the date of receipt of a copy of this judgment.

In the case of Jatniben Rameshbhai Buriya Vs. Election

Officer and Dy. Taluka Development Officer passed in 7345 of

2022 on 08.08.2022, the Division Bench while considering

the provisions of Section 31 of the Gujarat Panchayats Act

has observed in para 7 which is reproduced hereinunder:-

"7. Noticing the decision of the Division Bench of this Court and also the ratio laid down by the Apex Court, we are of the opinion that the order of the learned 3rd Addition Civil Judge, Dahod will need to be interfered with. The direction of recounting of the votes at the interim stage shall surely be not desirable after a well laid down principle in these decisions of both the Court.

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11. The decisions relied upon by the learned senior

counsel for the petitioner are not helpful to the case of the

petitioner.

12. Thus, in the totality of the facts and considering

the nature and scope of the proceedings, this Court is of

the view that in the interest of justice, the order dated

14.12.2023 passed by 9th Additional District and Sessions

Judge, Ahmedabad (Rural) in Misc. Civil Appeal No.43 of

2023, is upheld and learned 6th Additional Senior Civil

Judge, Ahmedabad (Rural), Navrangpura is directed to

conclude the proceedings of Election Petition No.1 of 2022

keeping in view the provisions of clause (b) of Sub-section

7 of Section 31 of the Act and pass an order under Sub-

section 3 of Section 31 within a period of five weeks from

the date of receipt of the order.

13. The learned 6th Additional Senior Civil Judge

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shall decide the Election Petition No.1 of 2022

independently and without being influenced by the

observations made by learned 9th Additional District and

Sessions Judge, Ahmedabad (Rural) in Misc. Civil Appeal

No.43 of 2023 and also without being influenced by the

observations made hereinabove. This Court has not gone

into the merits of the case.