Gujarat High Court
Shilaben Vijaykumar Mori vs Dharmendrasinh Manpritsinh Rathod on 15 October, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/13851/2025 ORDER DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13851 of 2025
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SHILABEN VIJAYKUMAR MORI
Versus
DHARMENDRASINH MANPRITSINH RATHOD & ORS.
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Appearance:
MR DD VYAS SENIOR ADVOCATE WITH MR PRATIK KHUBCHANDANI
FOR M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1
MR. KARNIDEVSINGH H. VAGHELA(18426) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 15/10/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE. Mr.Karnidevsingh H. Vaghela waives service of notice
of Rule on behalf of the respondent No.1.
2. In the present writ petition, the petitioner has assailed the
order dated 18.09.2025 passed by Senior Civil Judge and Additional
Chief Judicial Magistrate, Jhalod, District Dahod in Election
Petition No.2 of 2025, whereby Senior Civil Judge, despite noticing
the judgment of the Division Bench rendered in the case of
Manjulaben Prakashkumar Chaudhari vs. State of Gujarat and Ors.,
2017 G.L.H. (3) 65, has directed appointment of the Court
Commissioner for recounting of the votes.
3. Learned Senior Advocate Mr. D.D. Vyas, at the outset, has
pointed out the judgment of the Division Bench and has submitted
that the learned Civil Judge, who was appointed as per the
provisions of Section 31 of the Gujarat Panchayats Act, 1993, has
not only misinterpreted the judgment of this Court but also the
provisions of Section 31 of the Gujarat Panchayats Act, 1993 in
passing the impugned order.
NEUTRAL CITATION
C/SCA/13851/2025 ORDER DATED: 15/10/2025
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4. It is submitted that the statute does not provide any provision
which enables the Civil Judge to appoint the Court Commissioner
for recounting. Thus, it is urged that the impugned order dated
18.09.2025 passed by the learned Civil Judge may be quashed and
set aside.
5. Per contra, learned advocate Mr.Karnidevsingh H. Vaghela
appearing for respondent No.1, while placing reliance on the
provisions of Section 31(3), has submitted that the Civil Judge is
empowered to appoint the Court Commissioner for recounting of
the votes. It is submitted that the learned Civil Judge has precisely
distinguished the judgment of the Division Bench of this Court and
hence, it is urged that the order may not be disturbed.
6. We have heard the learned advocates appearing for the
respective parties.
7. At the outset, we may clarify that we are not entering into the
merits of the matter as the Election Petition is still pending.
However, we find that the learned Civil Judge, by passing the
impugned order dated 18.09.2025 in Election Petition No.2 of 2025
below Exh.7, has travelled beyond his authority. We have also
noticed that though the judgment of the Division Bench in case of
Manjulaben Prakashkumar Chaudhari (supra) has been
considered and incorporated in the order, the Civil Judge has
directed the appointment of Court Commissioner for recounting of
the number of votes on the pretext that the same will save the
precious time of the Court, which will be wasted in counting a huge
number of votes. This approach of the learned Civil Judge in an
Election Petition is absolutely perverse and uncalled for. This
Court, in case of Manjulaben Prakashkumar Chaudhari
(supra), after threadbare examination of the provisions of Section
NEUTRAL CITATION
C/SCA/13851/2025 ORDER DATED: 15/10/2025
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31 of the Gujarat Panchayats Act, 1993, read with Order 39 Rules I
and II of the Code of Civil Procedure, 1908, has held that the
provisions prescribed under Section 31 of the Act of 1993 have to
be scrupulously followed and the Judge referred to in Section 14 of
the Act of 1963 is a "persona designata" appointed for adjudicating
the proceedings as a Tribunal and not as a Court. It is further held
that the Judge, in an Election Petition, can only adopt such
procedure which can assist the inquiry or investigation carried in
furtherance of Section 31 of the Act of 1993, for deciding the
validity of the election. The entire procedure has to be undertaken
by him. In a subsequent decision rendered in the case of Ravindra
Natubhai Patel vs. Satishbhai Parshotambhai Patel, 2025 (2) G.L.H.
711, the Coordinate Bench in an identical issue has reiterated thus:
"[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. "
8. In the present case, it is noticed by us that Civil Judge,
without conducting any inquiry as mandated under sub-section (3)
of Section 31 of the Act of 1993, has directed the recounting of
votes by the Court Commissioner. The provisions of the statute do
not, in any manner, empower the Civil Judge to appoint a
Commissioner for recounting of the votes in order to save the
precious time of the Civil Judge, that too without holding inquiry as
mandated under Section 31 of the Act of 1993.
NEUTRAL CITATION
C/SCA/13851/2025 ORDER DATED: 15/10/2025
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9. Hence, since the impugned order dated 18.09.2025 passed by
the Senior Civil Judge & Additional Chief Judicial Magistrate,
Jhalod, District Dahod is not only in violation of the provisions of
sub-section (3) of Section 31 but also of settled legal precedent.
10. Under the circumstances, the present petition is allowed. The
impugned order dated 18.09.2025 passed by the Senior Civil Judge
and Additional Chief Judicial Magistrate, Jhalod, District Dahod in
Election Petition No.2 of 2025 is quashed and set aside. RULE is
made absolute.
11. We clarify that all the rights and contentions of the respective
parties are left open in the Election Petition so far as the issue of
recounting of votes is concerned.
(A. S. SUPEHIA, J)
(L. S. PIRZADA, J)
Hitesh / SB-8
