Gujarat High Court
Ravindra Natubhai Patel vs Satishbhai Parshotambhai Patel on 22 April, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FOR RECALL) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2024
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2025
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of
2023
In
R/SPECIAL CIVIL APPLICATION NO. 9343 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and Sd/-
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
=========================================
Approved for Reporting Yes No
✔
==========================================
RAVINDRA NATUBHAI PATEL
Versus
SATISHBHAI PARSHOTAMBHAI PATEL & ORS.
==========================================
Appearance:
MR. CHITRAJEET UPADHYAYA, ADVOCATE WITH
MR. KIRTAN H MISTRY(10012) for the Petitioner(s) No. 1
MS. SUMAN MOTLA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 2,3
MR BM MANGUKIYA(437) for the Respondent(s) No. 1
MR RUSHABH R SHAH(5314) for the Respondent(s) No. 1
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 1
==========================================
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 22/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
[1] By way of this petition, the petitioner challenges the
order passed by the Election Tribunal being Judicial Magistrate
First Class, Pardi, dated 02.05.2022 below Exhibit -1 in Election
Application No.2 of 2022, whereby learned Tribunal allowed the
Election Application, quashed and set aside the declaration of
result by the Returning Officer prior thereto, declaring
respondent No.1 herein as Sarpanch of Dungri Gram Panchayat
by 6 votes and Election Officer was directed to handover sealed
ballot boxes to concerned Office in presence of Court
Commissioner.
[2] As per the case of the petitioner, he was elected as
Sarpanch of Dungri Gram Panchayat, Taluka - Pardi, District -
Valsad on 21.12.2021 and therefore, respondent No.1 herein
preferred the Election Application before the Election Tribunal,
as aforesaid.
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[2.1] It is the case of the petitioner that 4 candidates have
filed nomination forms for the aforesaid post of Sarpanch, voting
took place on 19.12.2021 and counting of votes was undertaken
on 21.12.2021. It is submitted that process of counting of votes
had been undertaken in the presence of both the candidates and
their agents. At the end of process of counting, petitioner, being
polled highest number of votes, had been declared as elected
candidate for the post of Sarpanch of Dungri Gram Panchayat.
Final result came to be notified in Part-II duly signed by
Returning Officer dated 21.12.2021 and in the said document,
number of votes polled in favour of candidates mentioned round
wise, on an application for recounting requested by respondent
No.1 herein as also the votes polled for NOTA and on total
recount, petitioner being polled by highest number of votes, was
declared to be elected Sarpanch of Dungri Gram Panchayat.
[2.2] However, being aggrieved by the declaration of the
result, respondent No.1 herein, as contended by the learned
advocate for the petitioner, has filed the aforesaid Election
Application before the Election Tribunal on 03.01.2022.
Respondent No.1 herein vide Exhibit -6 application requested
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the Court for appointment of Court Commissioner under Order
XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short 'the
Code'), directing him to seize and produce the documents and
material as mentioned in the application from the official
respondents and to draw a panchnama thereof and produce
before the Tribunal. The said application was submitted to the
Court on the very same day when this election application came
to be filed, which was ordered to be fixed for hearing on
24.01.2022. The said application Exhibit -6 came to be allowed
partly by the learned Election Tribunal vide order dated
14.02.2022, ordering the Commissioner to carry out scrutiny of
all the documents and recounting of all the votes and submit a
detailed report on 25.02.2022. One Court Assistant Mr.
M.M.Patel, was appointed as Court Commissioner and the
applicant of the election application was directed to deposit
Rs.10,000/- towards the cost of the Commissioner. On deposit of
the same, Court Commissioner was to undertake that exercise.
Since the order below Exhibit - 6 application runs beyond the
scope of application itself, as there was no prayer for recounting
be ordered, the said order was requested to be stayed vide
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application Exhibit -17 dated 19.02.2022 filed by the petitioner
herein before the Election Tribunal. The application Exhibit -17
came to be rejected vide order dated 19.02.2022 by the learned
Election Tribunal on the ground that it is given with a view to
prolong the proceedings and the application does not bear the
signature of the advocate and it has not been submitted on
oath / verification before the Court.
[2.3] It is the contention of the petitioner that application
Exhibit - 6 given by respondent No.1 herein before the Election
Tribunal was with a prayer to seize and produce the election
material on record before the Court and to keep it in safe
custody, the order is passed thereof, that too, without hearing
the petitioner. However, pursuant thereto, the Court
Commissioner appointed, vide notice dated 17.02.2022 and
directed the parties to remain present at 10:00 a.m. on
21.02.2022 at Mamlatdar Office, Pardi with two respectable
persons to act as panch witnesses and if they fail to do so, the
Court Commissioner shall perform his duties as Court
Commissioner in their absence. The said notice of Court
Commissioner came to be served upon the petitioner on
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18.02.2022. The Court Commissioner vide mark 19/1, which is
at page 93 of the petition, drawn the panchnama in presence of
two panch witnesses, seizing and collecting the election
material as also carrying out recounting of votes, wherein it is
stated that the petitioner has polled 1675 votes and respondent
No.1 herein has polled 1674 votes. The Court Commissioner
vide mark 19/2 presented his report along with the panchnama
drawn.
[2.4] Thereafter, vide Exhibit -21 application on that very
day, i.e. 25.02.2025, respondent No.1 herein gave an application
that the scrutiny and computation of the votes recorded in
favour of each candidate has to be undertaken by the Court and
as it has been done by the Court Commissioner, it is against the
provisions made under Section 31 of the Gujarat Panchayats
Act, 1993 (for short 'the Act, 1993'). Therefore, it was requested
to undertake that scrutiny and computation of votes by the
Court itself in presence of parties or advocates of the parties.
[2.5] The learned Tribunal appointed advocate Ms. Hina
K. Patel as Court Commissioner, since Mr. M.M.Solanki
requested the Tribunal to relieve him from the duty of Court
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Commissioner.
[2.6] Petitioner herein filed reply to an application Exhibit-
21 filed by respondent No.1 herein praying for undertaking
scrutiny and computation of votes by itself. The Returning
Officer had also submitted his detailed reply on 28.04.2022,
producing the relevant documents before the Tribunal.
[2.7] The petitioner appears to have filed Exhibit -30
application requesting to undertake scrutiny of votes in relation
to stamp to be applied, mark to be made on the ballot papers
and whether visible or not, should be considered while
undertaking the exercise. However, the said application came to
be rejected by the Tribunal as it has been given after about an
hour of recounting started before the Tribunal. The entire
exercise was done in the presence of parties, their advocates,
panch, Returning Officer as also Mamlatdar and it came to be
rejected.
[2.8] While examining the records of the petition, it
appears that parties have vide different applications, requested
the Court to ensure compliance of the provisions of 'the Act,
1993' and the Gujarat Panchayat Election Rules (hereinafter
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referred to as "the Rules") and undertake scrutiny and
computation of votes in accordance with law. Though, those
other materials and other applications are not of that much
importance so far as decision in this petition is concerned,
thorough detailed examination on application and orders
thereon is required. However, it would be relevant to note that
the Court Commissioner appointed vide Exhibit - 42 submitted
report in detail, duly signed by the panch witnesses, recording
therein that all ballot papers have been counted and it was
shown to the parties, panchas, their advocates and in presence
of Returning Officer, those ballot papers were shown to them. It
is also mentioned that all ballot papers were seen by the
Tribunal as well and thereafter recounting is performed.
[3] Mr. Chitrajeet Upadhyaya, learned advocate for Mr.
Kirtan H. Mistry, learned advocate for the petitioner vehemently
submitted that on filing of the election application before the
Court under Section 31 of 'the Act, 1993', without undertaking
any inquiry into the application, straightaway by appointing
Court Commissioner, as requested by respondent No.1 herein,
recounting was ordered by the Court, that too, to be undertaken
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by the Court Commissioner, which is illegal. He has further
submitted that without examining any witness, for the purpose
of inquiry, into the election petition, no recounting could have
been ordered by the Election Tribunal. He has further submitted
that sub-section (3) of Section 31 of 'the Act, 1993' envisages
inquiry on filing of election application to be held by the Judge
and after such inquiry, learned Judge can pass an order, either
confirming or declaring result or setting the election aside.
[3.1] Drawing attention of the Court to the said provisions,
he has further submitted that for the purpose of said inquiry,
the Judge is empowered to exercise all the powers of a Civil
Court and his decision is held to be conclusive. Therefore, he
has submitted that learned Election Tribunal was not
empowered to undertake the exercise of recounting, that too,
once ordered to be performed by Court Commissioner and
thereafter undertaken by himself, without an inquiry being
conducted as envisaged.
[3.2] Since in the said application, there is no question of
any corrupt practice being committed by any candidate, within
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the meaning of sub-section (8) of Section 31 of 'the Act, 1993',
scrutiny and computation of votes shall have to be undertaken
by the learned Judge as Election Tribunal only upon conducting
an inquiry and not before that.
[3.3] Taking us to the annexures stated and annexed with
the petition, he has submitted that from the date of filing of the
application, instead of conducting an inquiry as contemplated
under sub-section (3) of Section 31 of 'the Act, 1993',
straightaway Tribunal directed recounting of votes through the
Court Commissioner, which is again illegal and thereafter it has
been undertaken by the Court itself is also illegal exercise of
powers, as envisaged under clause (a) and (b) of sub-section (7)
of Section 31 of 'the Act, 1993'. According to his submission,
clause (a) of sub-section (7) of Section 31 of 'the Act, 1993',
would apply in case any corrupt practice being alleged and
brought by way of inquiry before the Court, then the action of
disqualification of a candidate and the ultimate outcome of the
election application is stated therein. Merely because "holding
of such inquiry" is not stated in clause (b) of sub-section (7) of
Section 31 of 'the Act, 1993', it cannot be said that inquiry is
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dispensed with when a prayer is made for recounting of votes.
[3.4] He has further submitted that the Court of law
cannot be selected only for the purpose of recounting of votes,
asking it to act as an Election Officer. However, that power has
to be exercised by the Election Tribunal only and only after
conducting inquiry into the assertion made in the application
and appropriate proof thereof, that too, having been satisfied,
the Judge may undertake 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. According to his
submission, in no case, such exercise of scrutiny and
computation of votes to be undertaken by the learned Judge
without conducting an inquiry and some material in the form of
evidence, is led before the Court.
[3.5] Mr. Chitrajeet Upadhyaya, learned advocate for Mr.
Kirtan Mistry, learned advocate for the petitioner, in support of
his submission, places reliance on the decision of the Supreme
Court in the case of Udey Chand Vs. Surat Singh & Anr.
reported in (2009) 10 SCC 170, wherein similar such
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provisions of Haryana Panchayati Raj Act, 1994, in similar set of
circumstance having been applied, held that before Election
Tribunal can permit scrutiny of ballot papers and order recount,
two basic requirements viz. (i) the election petition seeking
recount of the ballot papers must contain an adequate
statement of all the material facts on which the allegations of
irregularity or illegality in counting are founded, and (ii) on the
basis of evidence adduced in support of the allegations, the
Tribunal must be prima facie satisfied that in order to decide
the dispute and to do complete and effectual justice between the
parties, making of such an order is imperatively necessary.
Therefore, he has submitted that the impugned order
passed by the learned Tribunal without holding an inquiry and
evidence being adduced before it in respect of sufficient
averments in the application and which is culminated into an
evidence, no order for scrutiny and counting of votes could have
been undertaken by the learned Tribunal.
[3.6] Relying on the decision of the Division Bench of this
Court in the case of Meghaben Datteshkumar Amin Vs. The
State Election Commission, reported in (2019) 1 GLR 404,
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more particularly para 8 & 9 thereof, he has submitted that the
Division Bench of this Court has conclusively held that an
inquiry as envisaged under sub-section (3) of Section 31 of 'the
Act, 1993' must precede recount of votes to arrive at such a
conclusion. As recorded in para - 9, not for mere asking but
upon inquiry envisaged under Section 31 (3) of 'the Act, 1993',
if reasonable grounds are made out, recount should be
undertaken. After considering the provisions of 'the Act, 1993'
and "the Rules" as also sub-sections (7) & (8) of Section 31 of
'the Act, 1993' thereof, this Court, according to submission of
learned counsel for the petitioner, concluded that inquiry as
envisaged under Section 31(3) of 'the Act, 1993', is a must
before ordering recount and undertaking exercise of scrutiny
and computation of votes.
[3.7] He has also relied on a decision in the case of
Mayurkumar Shivrambhai Vasava Vs. Bipinbhai
Champakbhai Vasava rendered in Special Civil Application
No.17022 of 2022, and submitted that as held in the said
decision, Tribunal conducting recounting of votes prior to
leading of evidence is objectionable and could not be permitted.
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Therefore, he has submitted that this petition be admitted and
allowed.
[4] As against that, Mr. B. M. Mangukiya, learned
advocate for respondent No.1 herein, vehemently submitted
that considering clause (b) of sub-section (7) of Section 31 of
'the Act, 1993', it requires no holding of any inquiry for the
purpose of ordering recount, which empowers the Tribunal to
undertake scrutiny and computation of votes. Therefore,
according to his submission, there is nothing wrong in
recounting being ordered and undertaken by the Tribunal
without conducting any inquiry and leading any evidence.
[4.1] He has further submitted that conscious absence of
word "holding of such inquiry", which is found in clause (a) of
sub-section (7) of Section 31 and not found in clause (b) of sub-
section (7) of Section 31 of 'the Act, 1993', is the legislative
intent wherein validity of election is in dispute between two or
more candidates, in any case to which clause (a) does not apply,
the learned Tribunal to undertake scrutiny as also computation
of the votes i.e. recounting of votes.
[4.1.1] For the said submission, he has relied on a decision
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of the Division Bench of this Court in the case of Shantiben
Velabhai Dhila Vs. Election Officer & Anr., rendered in
Special Civil Application No.7224 of 2017, dated
03.05.2017, more particularly, an observation made in para - 6
of the decision, and submitted that if the case falls under clause
(b) of sub-section (7) of Section 31 of 'the Act, 1993', all that
Judge is required to do is to scrutinize and compute the votes
recorded in favour of each candidate and declare the candidate
who is found to have the greatest number of valid votes in his
favour to have been duly elected. As it is further held in it that
scope of the inquiry in a case falling within the ambit of Section
31(7)(b) of 'the Act, 1993' is, therefore, very limited and all that
the learned Judge, while making the inquiry pursuant to the
election petition presented before him, is required to do is to
scrutinize and compute the votes recorded in favour of each
candidate and declare the candidate who is found to have the
greatest number of valid votes in his favour to have been duly
elected.
[4.2] Mr. B.M.Mangukiya, learned advocate for
respondent No.1 has further relied on another Division Bench's
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decision in the case of Nilaben Ashwinbhai Ka. Patel Vs.
Meghaben Datteshkumar Amin & Ors., rendered in Special
Civil Application No.8762 of 2017, which reiterates the view
taken in the case of Shantiben Velabhai Dhila (supra), and
submitted that conducting of inquiry under sub-section (3) of
Section 31 of 'the Act, 1993', is not sine qua non for invoking
powers of Judge as envisaged under clause (b) of sub-section (7)
of Section 31 of 'the Act, 1993'. Therefore, he has submitted
that there is nothing wrong in passing of an impugned order by
the learned Judge.
[4.3] He has further submitted that if this Court finds any
conflict between decisions in the case of Meghaben
Datteshkumar Amin (supra) and Shantiben Velabhai Dhila
(supra) as also Nilaben Ashwinbhai Ka. Patel (supra), then
this Court is supposed to refer the matter to the larger bench.
[4.4] However, according to his submission, this Court
cannot take a different view than the view taken by the
coordinate bench of this Court in the case of Shantiben
Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka.
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Patel (supra).
[4.5] We pointed out to the learned advocate Mr.
Mangukiya, that neither of the decisions in the case of
Shantiben Velabhai Dhila (supra) as also Nilaben
Ashwinbhai Ka. Patel (supra), is shown to the another
coordinate Bench of this Court which determined the case much
after both these cases determined i.e. after about a year or so.
The decision in the case of Meghaben Datteshkumar Amin
(supra) is rendered on 26th / 28th June 2018, whereas decisions
in the case of Shantiben Velabhai Dhila (supra) as also
Nilaben Ashwinbhai Ka. Patel (supra), are rendered on
03.05.2017 and 27.04.2017 respectively.
[4.6] Mr. Mangukiya, learned advocate was requested by
us to assist the Court, to reconcile with two sets of two different
decisions, the course, this Court should adopt. To the same, he
has, as an Officer of the Court, cited several precedents and
several decisions; reference of which would lengthen the
judgment. However, fact remains that though judgments are on
the principle with regard to decision per incuriam, we may deal
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with that aspect later on in this judgment.
[5] Having heard the learned advocates for the
appearing parties and going through the impugned judgment
and order as also the annexures annexed along with it, it reveals
that, not only no inquiry is conducted as contemplated under
sub-section (3) of Section 31 of 'the Act, 1993, by the learned
Tribunal, before undertaking the exercise of scrutiny and
computation of votes recorded in favour of each candidate i.e.
recounting as done by the learned Tribunal and thereafter
passing the order declaring respondent No.1 herein as elected
Sarpanch of Dungri Gram Panchayat by margin of 6 votes,
however, vide order dated 11.05.2022 in this petition status quo
position as existing on that day was ordered to be maintained.
The said order has come to be extended time and again which is
extended till today also.
[6] For the decision in this case, certain provisions of
'the Act, 1993' e.g. such as 31(3), 31(7) (a) (b), are required to
be quoted hereinbelow:
"31 (3) An inquiry shall thereupon be held by the Judge and
he may after such inquiry as he deems necessary, pass an
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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."
"31 (7) (a) If on the holding of such inquiry the Judge finds
that the candidate has for the purpose of the election
committed a corrupt practice within the meaning of sub-
section (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.
(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 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 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."
[7] A bare look at Section 31 and other sub-sections
therein, reveal that for either confirming or amending the
declared result, or setting the election aside, it is incumbent
upon the Judge to conduct inquiry as contemplated under sub-
section (3) of Section 31 of 'the Act, 1993'. Sub-section (7) of
Section 31 and clause (a) & (b) thereof, are not independent of
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sub-section (3) of Section 31 of 'the Act, 1993'. At the same
time, when clause (a) of sub-section (7) refers about "holding of
such inquiry", which is apparently missing in clause (b) of sub-
section (7), is not to be considered for the purpose whether
inquiry is to he held or not? before passing any order as
referred to in clause (a) and / or clause (b). The narration of
clause (b) which is explicit, reveals that "in any case to which
clause (a) does not apply, it means where Court comes to a
conclusion that candidate has committed a corrupt practice
within the meaning of sub-section (8); it provides for
disqualification and in absence of any allegation of corrupt
practice, for the purpose of election, committed by anyone, in
that case evidence adduced before the Tribunal in the form of
inquiry where validity of election is in dispute between two or
more candidates, on such material being brought on record,
which may compel the Judge to undertake scrutiny and
computation of the votes recorded in favour of each candidate,
to declare the candidate, who is found to have greatest number
of valid votes in his favour to have been duly elected."
[7.1] Therefore, purpose of clause (a) & (b) in sub-section
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(7) of Section 31 of 'the Act, 1993' appears to be different but
that is after conducting an inquiry as contemplated under sub-
section (3) of Section 31 of 'the Act, 1993'.
[8] There may be a case where adequate statement of all
the facts on which allegations of irregularity or illegality in
counting of votes are founded with contemporaneous evidence
in support thereof, it may not be necessary for the Court to hold
a regular inquiry as postulated under clause (a) of sub-section
(7) of Section 31 of 'the Act, 1993'. However, an order for
recounting on the basis of bare allegations in the election
petition would not be a proper exercise of jurisdiction under the
provisions. Examining the election application and the
impugned order, keeping in mind the aforesaid principles, we
are at a loss to find any such adequate material disclosed in the
petition, that too, with contemporaneous evidence, which may
lead the Tribunal to pass an order of recounting without
conducting an inquiry as contemplated under sub-section (3) of
Section 31 of 'the Act, 1993'. Be that as it may, the Tribunal in
an election application under Section 31 of 'the Act, 1993' is not
to act as mere post office and acting as second Returning
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Officer, for the one election, who is also to undertake the
exercise of recount of votes in accordance with law. It is only on
the basis of sufficient material disclosed in the election
application on which the allegation of irregularity or illegality
are founded along with some contemporaneous evidence, that
too, after conducting an inquiry, the Judge has to conclude
based on that material / evidence to undertake the exercise of
scrutiny and computation of votes, as enumerated in clause (b)
of sub-section (7) of Section 31 of 'the Act, 1993'.
[9] The decision in the case of Meghaben
Datteshkumar Amin (supra), more particularly para - 8 & 9
thereof, after considering sub-sections (3), (7)(a) and (7)(b) of
Section 31 of 'the Act, 1993' as also the Gujarat Panchayat
Election Rules, 1994, categorically held that sub-section (3) of
Section 31 of 'the Act, 1993' thus requires concerned Judge to
hold a proper inquiry into the allegations contained in the
election application and upon culmination of such inquiry, to
pass an order either confirming the result already declared or to
set aside the election. While dealing with clause (b) of sub-
section (7) of Section 31 of 'the Act, 1993', the Division Bench of
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this Court in the aforesaid case, concluded that it applies in a
case where clause (a) does not apply, meaning thereby, when
there are no findings of corrupt practice against any candidate,
in such a case, if the validity of an election is in dispute between
two or more candidates, the Judge would 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.
[9.1] As further held in that case, the legislative intent of
enacting clause (b) of sub-section (7) of 'the Act, 1993' thus is to
ensure that the candidate securing the highest number of valid
votes is duly declared elected. If there has been any error in the
process of counting the votes; which would include acceptance
of invalid votes or adding to the tally of votes in favour of one
candidate when the vote is polled for any candidate, such error
should be corrected.
[9.2] As recorded in para 8.1 of the aforesaid decision,
even before resorting to the powers under clause (b) of sub-
section (7) of Section 31 of 'the Act, 1993', the Judge must
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satisfy himself through proper inquiry, that the need for recount
of the votes, has arisen. While considering the analogous
provisions under the Representation of Peoples Act, 1951 (for
short 'the Act, 1951') and the provisions made therein, it is
noticed by the Division Bench of this Court that there is no
provisions in 'the Act, 1951', parallel to sub-section (7) of
Section 31 of 'the Act, 1993'. In background of such provisions,
Courts have put considerable stress on secrecy of ballots and
not upsetting the result of election lightly and in any case not
recognizing mere smallness of margin as standalone ground for
granting recount. Nevertheless, sub-section (7) of Section 31 of
'the Act, 1993' which is vitally different from the provisions
contained in 'the Act, 1951' providing mechanism for resolving
election disputes, must be given its due importance, weightage
and meaning. Reconciling and recognizing the inter-play
between sub-section (3) of Section 31 and clause (b) of sub-
section (7) of Section 31 of 'the Act, 1993', construing
harmoniously in para-9 of the aforesaid decision and the
Division Bench concluded that inquiry as envisaged under sub-
section (3) of Section 31 of 'the Act, 1993' must precede recount
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of votes to arrive at such a conclusion . In other words, not for
mere asking but upon inquiry envisaged under Section 31(3) of
'the Act, 1993', if reasonable grounds are made out, recount
should be undertaken.
[10] Though decision in the case of Shantiben Velabhai
Dhila (supra) as also Nilaben Ashwinbhai Ka. Patel
(supra), takes a view that if in the event a case falls under
clause (b) of sub-section (7) of Section 31 of 'the Act, 1993', all
that the Judge is required to do is to scrutinize and compute the
votes recorded in favour of each candidate and declare the
candidate who is found to have the greatest number of valid
votes in his favour to have been duly elected. The scope of
inquiry in a case falling within the ambit of Section 31(7)(b) of
'the Act, 1993' is, therefore, very limited and all that the learned
Judge while making the inquiry pursuant to the election petition
presented before him is required to do is to scrutinize and
compute the votes recorded in favour of each candidate and
declare the candidate who is found to have the greatest number
of valid votes in his favour to have been duly elected, is
independently determined without the provisions contained in
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sub-section (3) of Section 31 of 'the Act, 1993'. Be that as it
may, the view taken by the Division Bench of this Court in the
case of Meghaben Datteshkumar Amin (supra), though
without noticing the aforesaid two decisions, is the view
interpreting the provisions of 'the Act, 1993' and in consonance
with the decision of the Supreme Court in the case of Udey
Chand (supra), wherein Supreme Court was called upon to
consider and determine the very similar such provisions as
mentioned in Section 176(4)(a) and (b) of the Haryana
Panchayati Raj Act, 1994.
[10.1] As recorded in para-12 of the decision of the
Supreme Court in the case of Udey Chand (supra), the
importance of maintenance of secrecy of ballot papers and the
circumstances under which that secrecy can be breached, has
been considered by Supreme Court in several cases. It is held
that "it would be trite to state that before an Election Tribunal
can permit scrutiny of ballot papers and order re-count, two
basic requirements viz.: (i) the election petition seeking re-count
of the ballot papers must contain an adequate statement of all
the material facts on which the allegations of irregularity or
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illegality in counting are founded, and (ii) on the basis of
evidence adduced in support of the allegations, the Tribunal
must be prima facie satisfied that in order to decide the dispute
and to do complete and effectual justice between the parties,
marking of such an order is imperatively necessary."
[11] Relying on the several decisions of the Supreme
Court as also decision in the case of Vadivelu Vs. Sundaram &
Ors. reported in AIR 2000 SC 3230, in which, the Court has
considered that the petitioner who seeks recount should allege
and prove that there was improper acceptance of invalid votes
or improper rejection of valid votes. While specifically dealing
with Section 176(4)(a) and (b) of the Haryana Panchayati Raj
Act, 1994, which is almost pari materia to the provisions
contained in clause (a) and (b) of sub-section (7) of Section 31 of
'the Act, 1993', the Court held that petition for recount as
contemplated in clause (b) of Section 176(4) of Haryana
Panchayati Raj Act, 1994, must contain adequate statement of
material facts on which the election petitioner relies in support
of his allegation and it must also be supported by some
contemporaneous evidence to show irregularity or illegality in
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the counting. The only difference between the Haryana
Panchayati Raj Act, 1994 and 'the Act, 1993' is about powers of
the Court under sub-section (3) of Section 31 conducting an
inquiry and thereafter, passing an order confirming and / or
amending the declared result and setting the election aside. The
Haryana Panchayati Raj Act, 1994 does not have similar such
provisions for conducting inquiry as provided in sub-section (3)
of Section 31 of 'the Act, 1993' and therefore, it did not fall for
consideration before the Supreme Court in the case of Udey
Chand (supra) but in para-12, it has been held that there has
to be evidence adduced, but it has been very specifically dealt
with by the Division Bench of this Court in the case of
Meghaben Datteshkumar Amin (supra), and very
categorically concluded that even before resorting to the
powers under clause (b) of sub-section (7) of Section 31 of 'the
Act, 1993', the Judge must satisfy himself through proper
inquiry, that the need for recount of the votes; has arisen.
[11.1] Considering and analyzing sub-section (3) and sub-
section (7) of 'the Act, 1993', in para -8 of the aforesaid
decision, it is held that sub-section (3) of Section 31 of 'the Act,
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1993' thus requires the concerned Judge to hold proper inquiry
into the election petition and upon culmination of such inquiry,
to pass order either confirming the result already declared or
set aside the election.
[11.2] In para -9 of the aforesaid decision, it is specifically
held that inquiry as envisaged under sub-section (3) of Section
31 of 'the Act, 1993' must precede recount of votes to arrive at
such a conclusion. In the present case, without conducting any
such inquiry as also without even finding adequate and
sufficient averments in the election petition, learned Judge has
ordered recounting of votes, that too, through Court
Commissioner and on an application being filed, that it is for the
Judge to scrutinize and compute the votes, it has been
undertaken by him and ultimately setting aside the result
announced by the Returning Officer and declaring respondent
No.1 herein as Sarpanch of Dungri Gram Panchayat by margin
of 6 votes vide impugned order.
[12] In absence of any provisions as contemplated under
sub-section (3) of Section 31 of 'the Act, 1993', the contention
raised by the learned advocate for respondent No.1 herein that
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no inquiry is required to be initiated prior to ordering recount
and undertaking the exercise of scrutiny and computation of
votes, may prompt the Court to accept the same but when there
is such provision which is held to be conducting of inquiry
should precede the recounting ordered as interpreted by the
Division Bench in the case of Meghaben Datteshkumar Amin
(supra), we are unable to accept the contention of the learned
advocate for respondent No.1 and the decisions cited by him in
the case of Shantiben Velabhai Dhila (supra) as also
Nilaben Ashwinbhai Ka. Patel (supra). Not only that, even
Haryana Panchayati Raj Act, 1994 also does not have similar
such provisions of conducting inquiry under sub-section (3) of
Section 31 of 'the Act, 1993' and therefore, when interpreting
clause (a) and (b) of Section 176(4) of the Haryana Panchayati
Raj Act, 1994 which are more or less similar to clause (a) and
(b) of sub-section (7) of Section 31 of 'the Act, 1993', Supreme
Court in para-12 of the decision in the case of Udey Chand
(supra), led emphasis on evidence adduced in support of
allegations seeking recount of ballot papers.
[12.1] We are to follow the decision, which not only
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interprets both the relevant provisions, such as sub-section (3)
and sub-section (7) of Section 31 of 'the Act, 1993', whereas
provisions contained in sub-section (3) of Section 31 is not even
considered by the another Division Bench of this Court in the
case of Shantiben Velabhai Dhila (supra) as also Nilaben
Ashwinbhai Ka. Patel (supra). As such, there appears no
contradictory decision as suggested by the learned advocate for
respondent No.1 when he relies on the case of Shantiben
Velabhai Dhila (supra) as also Nilaben Ashwinbhai Ka.
Patel (supra), as requirement of an inquiry contemplated
under sub-section (3) of Section 31 of 'the Act, 1993' was not
even noticed in the aforesaid two decisions. Whereas the
decision in the case of Meghaben Datteshkumar Amin
(supra), after quoting and interpreting both these provisions,
has reached a conclusion that inquiry contemplated under sub-
section (3) of Section 31 of 'the Act, 1993' must precede before
ordering recounting as provided under clause (b) of sub-section
(7) of Section 31 of 'the Act, 1993', which has support of
Supreme Court decision in the case of Udey Chand (supra).
[13] In this case, for the cost of repetition, learned Judge
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has not at all considered averments made in the application and
has not even reached to a conclusion that there are adequate
and sufficient materials supported by contemporaneous
evidence to order recounting and therefore also, the impugned
order passed by the learned Judge is required to be quashed
and set aside.
[
[14] Hence, the impugned order dated 02.05.2022 passed
below Exhibit -1 in Election Application No.2 of 2022 by the
Election Tribunal being Judicial Magistrate First Class, Pardi, is
hereby quashed and set aside and case is remanded back to the
Election Tribunal to proceed further in accordance with law.
[15] In view thereof, this petition stands disposed of as
allowed to the aforesaid extent.
[16] In view of disposal of the main petition, the
connected Civil Applications stand disposed of. Record and
Proceedings to be sent back to the concerned Court forthwith.
(UMESH A. TRIVEDI, J)
(CHEEKATI MANAVENDRANATH ROY, J)
Lalji Desai
