Allowed

Meghaben Datteshkumar Amin v. the State Election Commission

Gujarat HC26 Jun 2018SCA/15443/2017

Case brief

AI extract

What is this about?

Panchayat Sarpanch election challenged after the returned candidate won by 35 votes. The Election Judge invalidated 31 of 32 postal ballots but refused recount. The High Court held recount was wrongly refused, set aside the judgment and directed the Election Judge to recount the votes and pass a fresh order.

What did the court decide?

Special Civil Application allowed; judgment of the Election Judge set aside; the Election Judge directed to carry out recounting of votes and pass appropriate order within four weeks.

Meghaben Datteshkumar Amin Vs the State Election Commission — Election Law | Gujarat HC (2018)

¶1

C/SCA/15443/2017 JUDGMENT

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/SPECIAL CIVIL APPLICATION No. 15443 of 2017

¶4

FOR APPROVAL AND SIGNATURE : HONOURABLE Mr. JUSTICE AKIL KURESHI and HONOURABLE Mr. JUSTICE B.N. KARIA

¶5

==============================================================

¶6

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

¶7

2 To be referred to the Reporter or not ?

¶8

3 Whether their Lordships wish to see the fair copy of the judgment ?

¶9

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

¶10

============================================================== MEGHABEN DATTESHKUMAR AMIN Versus THE STATE ELECTION COMMISSION

¶11

==============================================================

¶12

Appearance :

¶13

Mr SAURABH G AMIN, Advocate for the PETITIONER Mr DHAWAN JAYSWAL, AGP for the RESPONDENT(s) No. 1,3,4 Mr SN SHELAT, Sr Advocate with Mr MRUGEN K PUROHIT, Advocate for the RESPONDENT(s) No. 2

¶14

Ms ROOPAL R PATEL(1360) for the RESPONDENT(s) No. 1

¶15

==============================================================

¶16

CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI and HONOURABLE Mr. JUSTICE B.N. KARIA 26^th / 28^th June 2018

¶17

ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)

¶18

The petitioner has challenged the judgment dated 9^th June

¶19

2017 passed by the learned Principal Civil Judge & JMFC,

¶20

Page 1 of 28

¶21

C/SCA/15443/2017 JUDGMENT

¶22

Borsad in Election Petition No. 1 of 2017 by which the petitioner’s election petition came to be dismissed.

¶23

Brief facts are as under :

¶24

2.1 Election for the post of Sarpanch of Virsad Gram Panchayat was conducted by the State Election Commission in the month of December 2016; in accordance with the provisions contained in the Gujarat Panchayats Act, 1993 [“ the Act ” for short] and the rules made thereunder. The petitioner and the respondent no. 2 herein were the only two candidates in the fray. Polling took place on 27^th December 2016 and the counting of votes was conducted on 29^th December 2016. During the counting, petitioner had raised multiple disputes with the Election Officer and filed as many as four applications raising objections. Yet another application was filed before the Election Officer, after counting of the votes was over, but before declaration of result of the election. All such applications were rejected by the Election Officer. The result was declared in the late night of 29^th December 2016 and early morning of 30^th December 2016 wherein the respondent no. 2 was declared as a successful candidate. Out of the total of 5641 valid votes; which included 32 postal

¶25

Page 2 of 28

¶26

C/SCA/15443/2017 JUDGMENT

¶27

ballots, the returned candidate had secured 2646 votes, the petitioner had received 2611 votes and there were 89 rejected and NOTA votes.

¶28

2.2 The petitioner filed the said election petition before the learned Principal Civil Judge & JMFC, Borsad praying for setting aside the election of the respondent no. 2 and for conducting the election afresh. In such election petition, she averred that during the course of counting of the votes which took place on 29^th December 2016, she and her election agents were present. During counting, the Returning Officer had not followed the provisions of the Act. The votes were counted in such a manner as to favour the defendant no. 1 ie., the present respondent no. 2. She objected to the manner in which the postal ballots were accepted and counted. She had also raised objection with respect to the votes which were declared invalid and which were NOTA votes. She had filed several applications before the Returning Officer during the course of counting of the votes itself. She contended that the Returning Officer had favoured the defendant no. 1 through unfair means.

¶29

2.3 The defendants which included the returned candidate and the official respondents opposed the election petition by

¶30

Page 3 of 28

¶31

C/SCA/15443/2017 JUDGMENT

¶32

the filing replies.

¶33

2.3 The petitioner moved an application Exh. 21 in such proceedings and prayed for recount of votes as an interim measure. Such application was rejected by the learned Judge, upon which the petitioner filed appeal-from-order before the District Court. The District Court allowed such an appeal and ordered re-count of votes by way of interim measure. This order was challenged by the returned candidate before this Court. Division Bench of this Court, by an Order dated 24^th July 2017, reversed the appellate order and allowed the petition. In such judgment, reference was made to sub-section [7] of Section 31 of the Act and the learned Judge was requested to pass a final judgment within six weeks from the date of receipt of the copy of the judgment.

¶34

2.4 Relevant portion of the judgment of Division Bench reads as under :

¶35

“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

¶36

Page 4 of 28

¶37

C/SCA/15443/2017 JUDGMENT

¶38

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 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.

¶39

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 sub-section (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.”

¶40

Page 5 of 28

¶41

C/SCA/15443/2017 JUDGMENT

¶42

Before the learned Judge, the election petition was tried at length. The petitioner’s evidence was recorded. She was crossexamined. Returning Officer also gave his deposition. He was cross examined by the appellant. Two main aspects came up for consideration before the learned Judge. One was – whether the Returning Officer had committed an error in accepting the postal ballots as valid votes. And the second was – whether the petitioner’s request for recount of the votes should be granted. With respect to the first question, the learned Judge substantially held in favour of the petitioner. Case of the petitioner was that while issuing the postal ballots, Form-16 had to be attested by the Gazetted Officer which in the present case was not done. This would completely destroy the sanctity of the postal ballots. The learned Judge accepted this proposition and declared that as many as 31 out of 32 postal ballots were invalid. Regarding recount, the learned Judge did not accept the petitioner’s prayer. He was of the opinion that even after discarding 31 postal ballots which were all polled in favour of the returned candidate, there was still a margin of four votes between the two candidates. He, therefore, refused to set-aside the election of the returned candidate and

¶43

Page 6 of 28

¶44

C/SCA/15443/2017 JUDGMENT

¶45

dismissed the election petition. This judgment, the petitioner has challenged in the present writ petition.

¶46

Learned counsel for the petitioner raised the following contentions :

¶47

[i] The petitioner had filed several applications before the Election Officer when the counting was going on. These applications suggest that there were gross irregularities and illegalities committed by the Returning Officer in counting of the votes. These irregularities were so blatant as to demonstrate clear bias in favour of the returned candidate. By way of example, counsel would refer to acceptance of all the postal ballots, though the same suffered from material defects. According to him, the Returning Officer ought to have on his own rejected all such ballots which despite the petitioner’s objection, he did not do.

¶48

[ii] The trial Court ought to have granted recount when it was shown that there were material irregularities committed during the course of counting of the votes. After discarding the invalid postal ballots, the margin of the returned candidate came down to mere four votes.

¶49

Page 7 of 28

¶50

C/SCA/15443/2017 JUDGMENT

¶51

[iii] Counsel drew our attention to sub-section [7] of Section 31 of the Act to contend that the Legislative mandate is to recount the votes by the Election Tribunal whenever such a dispute comes before the Court.

¶52

4.1 In support of his contentions, counsel relied on a decision of Supreme Court in the case of Sadhu Singh v. Darshan Singh & Anr ., reported in [2006] 6 SCC 255 in which, in the context of prayer for recount of votes, it was observed as under:

¶53

“7. Concededly, the following factors are relevant for directing re-counting of votes :

¶54

[i] prima facie case must be established;

¶55

[ii] material facts must be pleaded stating irregularities in counting of votes;

¶56

[iii] a roving and fishing inquiry shall not be directed by way of an order for re-counting of votes;

¶57

[iv] an objection of the said effect should be raised; and

¶58

[v] secrecy of ballot papers should be maintained.”

¶59

On the other hand, learned senior counsel Shri S.N Shelat appeared for the returned candidate and opposed the petition raising the following contentions :

¶60

[i] The entire election petition was based on the validity of the postal ballots. The petitioner had not questioned counting

¶61

Page 8 of 28

¶62

C/SCA/15443/2017 JUDGMENT

¶63

of remaining votes.

¶64

[ii] Recounting of votes cannot be granted for mere asking. The petitioner had not established by leading cogent evidence that there was any irregularity or illegality during counting of the votes.

¶65

[iii] Mere small margin of votes between the two candidates would not permit the Court to order recounting. Sub-section (7) of Section 31 of the Act cannot be interpreted in such a manner that there shall be recounting every time an election petition is filed which is not based on allegation of corrupt practice. Any such interpretation would open flood gates and would render the provision of sub-section [3] of Section 31 substantially redundant.

¶66

5.1 In support of his contentions, counsel relied on the following judgments :

¶67

[a] In case of Vadivelu v. Sundaram & Ors ., reported in AIR 2000 SC 3230 in which, in the context of prayer for recounting of votes, the Court held and observed as under :

¶68

“16. The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in

¶69

Page 9 of 28

¶70

C/SCA/15443/2017 JUDGMENT

¶71

the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But, if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties.”

¶72

[ii] In case of Prahladbhai Khemchanddas Patel v. Election Officer of Visnagar Taluka Panchayat Election and Taluka Development Officer & Anr ., reported in 2003 [3] GLR 1450, in which in the context of challenge to the election of Panchayats, referring to Section 31 of the said Act, Division Bench of this Court held that marginal difference in the votes polled by the rival candidates itself would not a ground for recount. Demand for recount must contain specific allegations of illegality, irregularity, etc., and must be supported by cogent material.

¶73

Page 10 of 28

¶74

C/SCA/15443/2017 JUDGMENT

¶75

Learned advocate Ms. Rupal Patel for the Election Commission also opposed the petition contending that the petitioner’s application for recount filed before the Returning Officer did not contain specific reasons and was therefore rightly rejected by the said Officer. She in fact suggested that such application was filed by the petitioner after declaration of the result of election which was not a correct stage for filing the application.

¶76

Having heard learned advocates for the parties and having perused the documents on record, we briefly summarize the pleadings.

¶77

7.1 The record would suggest that during counting of the votes and before declaration of the result of election, the petitioner had filed as many as five applications before the Returning Officer – essentially in some form or the other, disputing validity of the process of counting of votes. In first such application, she objected to acceptance of the postal ballots. She contended that none of the postal ballots were valid and all should therefore be rejected. In the second application, she objected to discontinuance of the process of continuing of votes suggesting that the same was done without any valid

¶78

Page 11 of 28

¶79

C/SCA/15443/2017 JUDGMENT

¶80

reasons. In the third application, she requested that the rejected votes and NOTA votes may be recounted. Such application was rejected by the Returning Officer. In yet another application which she filed at 1:45 pm late at night, she asked for recount of the votes. As the evidence would suggest, this application was filed at the end of counting of all the ballot papers but before declaration of the result of election. Returning Officer in his cross examination agreed that such application was filed after the counting of votes was over but result of election was not declared. On such application, the Returning Officer made an endorsement to the effect that, “the candidate insists on recounting of votes. As per rules, the bundles of 50 votes can be counted, however, the candidate and other agent did not agree, the request is rejected.” Finally, when the result of election was declared and the respondent no. 2 herein was declared as a returned candidate, the petitioner moved an election petition in which primary allegations were that there were large number of irregularities in counting of votes; the postal ballots which ought to have been rejected because the crucial certificate was not accompanied were accepted; overall counting was carried

¶81

Page 12 of 28

¶82

C/SCA/15443/2017 JUDGMENT

¶83

out in such a manner as to favour the respondent no. 2. Before the learned Principal Civil Judge & JMFC, Borsad application was filed for granting recount of votes as an interim measure. Eventually, when the issue reached the High Court, the High Court; as noted, did not approve recounting of votes by way of interim measure, nevertheless requested the learned Civil Judge to conclude the proceedings of the election petition 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 six weeks from the date of receipt of a copy of this judgment. The learned Judge while disposing of the election petition upheld the petitioner’s contention with respect to invalidity of 31 out of 32 postal ballots, but refused to grant re-count for the cited reasons.

¶84

28 th June 2018

¶85

7.2 The said Act makes detailed provisions for conduct of elections in the different Panchayats and for challenge to such election, when dispute arises. Section 31 of the Act pertains to Determination of validity of election, inquiry by Judge and procedure. Relevant portion of which reads as under :

¶86

Page 13 of 28

¶87

C/SCA/15443/2017 JUDGMENT

¶88

“31. [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 15 days after the date of 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), (herein 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.

¶89

[2] A petitioner shall not join as respondents to his election petition persons except those mentioned in the following clauses, namely:-

¶90

(a) where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates, claim 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 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

¶91

(b) any other candidate against whom allegations of any corrupt practice are made in the election petition.

¶92

Page 14 of 28

¶93

C/SCA/15443/2017 JUDGMENT

¶94

[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 purpose of the said inquiry, the said Judge may exercise all the powers of a civil court, and his decision shall be conclusive.

¶95

[4] xx xx xx

¶96

[5] xx xx xx

¶97

[6] xx xx xx

¶98

[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 and of such fresh election of such candidate if he has been elected.

¶99

(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 .

¶100

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:

¶101

Page 15 of 28

¶102

C/SCA/15443/2017 JUDGMENT

¶103

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.”

¶104

7.2 Part-VII of Gujarat Panchayat Elections Rules, 1994 (here-in-after referred to as “ the Rules ”) pertains to counting of votes. Rule 60 contained in such part makes detailed provisions for counting of votes. Rule 61 pertains to recount of votes. Sub-rule(1) thereof provides that after announcement of the total number of votes polled by a candidate, a candidate or his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. On such an application being made, the returning officer shall decide the matter and may allow the application either in whole or in part or may reject it in toto, if it appears to him to be frivolous or unreasonable. Sub-rule (3) of Rule 61 provides that every decision of the returning officer

¶105

Page 16 of 28

¶106

C/SCA/15443/2017 JUDGMENT

¶107

under sub-rule(2) shall be in writing and contain reason thereof.

¶108

It can be seen that Section 31 of the Act makes detailed provisions of deciding the election disputes. Validity of an election of a member of Panchayats would be judged within parameters of the said provisions and the procedure laid down thereunder. Sub-section [1] of Section 31 of the Act permits the proceedings to be instituted for calling in question of the election at any time within fifteen days after the date of declaration of the results of the election and also prescribes the Court which would entertain such election petition. Subsection [3] of Section 31, which is of considerable importance, provides that upon presentation of such election petition, inquiry shall 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 purpose of conducting such inquiry, the Judge would exercise all powers of a Civil Court and his decision would be conclusive. Sub-section [3] of Section 31 of the Act thus requires the concerned Judge to hold proper inquiry into the allegations contained in the election petition and upon

¶109

Page 17 of 28

¶110

C/SCA/15443/2017 JUDGMENT

¶111

culmination of such inquiry, to pass order either confirming the result already declared or set-aside the election. Subsection [7] of Section 31 is also important. Clause (a) thereof applies to a case where upon holding of the inquiry, if the Judge finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of subsection [8], in such a case, he would declare the candidate disqualified for the purpose of that election and for such fresh election, as he may hold under Section 33 and he would also set-aside election of such candidate; if he has been elected. Clause (b) of sub-section [7] 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. The legislative intent of enacting clause (b) of sub-section [7] of the Act thus is to ensure that the candidate securing the highest number of valid votes is duly declared elected. If there has been any error

¶112

Page 18 of 28

¶113

C/SCA/15443/2017 JUDGMENT

¶114

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. Essentially, upon scrutiny if the Judge finds that a candidate who has secured the highest number of votes is not declared elected, he would suitably amend the result of the election in terms of subsection [3] of Section 31 of the Act.

¶115

8.1 This is not to suggest that in every case for mere asking the Judge would order recount of votes. We are in agreement with the suggestion of counsel for the respondents that the Legislature has not provided for recount of votes in every election petition which is not based on allegation of corrupt practice. The requirement of conducting an inquiry as found necessary and as referred to in sub-section [3] of Section 31 is not done away with. In other words, even before resorting to the powers under clause (b) of sub-section [7] of Section 31, the Judge must satisfy himself through proper inquiry, that the need for recount of the votes; has arisen. At the same time, we cannot equate the election dispute arising under the said Act and to which Section 31 and in particular sub-section [7] of

¶116

Page 19 of 28

¶117

C/SCA/15443/2017 JUDGMENT

¶118

Section 31 applies to the rigours of provisions of the Representation of Peoples Act, 1951 [“A ct of 1951 ” for short] imposed by the Courts through series of judgments, whenever question of recounting of votes arises. Chapter III of the Act of 1951 pertains to the trial of election petitions. Section 100 contained in the said Chapter provides for grounds for declaring election to be void. Section 101 pertains to grounds for which a candidate other than the returned candidate may be declared to have been elected and provides that if any person who has lodged a petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of the opinion that in fact, the petitioner or such other candidate received a majority of the valid notes or that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, High Court after declaring the election of the returned candidate to be void shall also declare the petitioner or such other candidate to have been duly elected. Noticeably, there is no provision in these sections parallel to sub-section(7) of

¶119

Page 20 of 28

¶120

C/SCA/15443/2017 JUDGMENT

¶121

Section 31 of the Act. In background of such provisions, Courts have put considerable stress on secrecy of ballots and 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 which is vitally different from the provisions contained in the Act of 1951 providing for mechanism for resolving election disputes, must be given its due importance, weightage and meaning. Accepting contention of learned counsel for the respondents that even in face of sub-section [7] of Section 31 of the Act, recounting cannot be granted unless and until it is established through cogent and reliable evidence that sufficient number of votes which will materially affect the result of the election were wrongly counted, would render the provision of clause [b] of sub-section [7] of Section 31 wholly redundant and otiose. We must reconcile and recognize the inter-play between sub-section [3] of Section 31 and clause (b) of subsection [7] thereof. Sub-section [3] and [7] of Section 31 will have to be harmoniously construed.

¶122

As discussed earlier, the legislative intent appears to be that in case of disputes of Panchayat elections, which are

¶123

Page 21 of 28

¶124

C/SCA/15443/2017 JUDGMENT

¶125

brought to the Court under Section 31 of the Act, the paramount consideration before the Court would be to declare such candidate who has polled highest number of valid votes as duly elected. However, inquiry as envisaged under subsection [3] of Section 31 of the Act must precede recount of votes to arrive at such a conclusion. In other words, not for mere asking but upon enquiry envisaged under Section 31 [3] if reasonable grounds are made out, recount should be undertaken.

¶126

Learned counsel for the returned candidate, however, canvassed that the decision of Supreme Court in case of Vadivelu v. Sundaram & Ors. [Supra] was rendered in the background of the Tamil Nadu Panchayats Act, 1994 and not under the Act of 1951. We have verified the provisions contained in the Tamil Nadu Panchayats Act pertaining to election disputes. These provisions are contained in Sections 258 to 260 of the Tamil Nadu Panchayats Act. Section 258 pertains to election petitions, enabling aggrieved person to file election petition within fifteen days from the date of publication of result. Section 259 of the Tamil Nadu Panchayats Act pertains to grounds for declaring elections to

¶127

Page 22 of 28

¶128

C/SCA/15443/2017 JUDGMENT

¶129

be void. Sub-section [1] of Section 259 recognizes four grounds for such purpose viz., [a] that on the date of his election, the returned candidate was not qualified or was disqualified; [b] that any corrupt practice has been committed by the returned candidate or his agent or by any other person with the consent of the returned candidate or his agent; [c] nomination papers have been improperly rejected , or [d] that the result of the election insofar as it concerns a returned candidate has been materially affected by any of the four factors mentioned therein, such as, by improper acceptance of nomination or improper acceptance or refusal of any vote or reception of any vote which is void, etc. Section 260 of the Tamil Nadu Panchayats Act pertains to corrupt practice. Provision similar to clause (b) of sub-section 7 of Section 31 of the Act is not to be found in the Tamil Nadu Panchayats Act. The provisions contained in Tamil Nadu Panchayats Act in connection with election disputes are akin to those made in the Representation of Peoples Act, 1951.

¶130

We are also conscious that the judgment of this Court in case of Prahladbhai Khemchanddas Patel v. Election Officer of Visnagar Taluka Panchayat Election &

¶131

Page 23 of 28

¶132

C/SCA/15443/2017 JUDGMENT

¶133

Taluka Development Officer & Anr. [Supra] are rendered in the background of Gujarat Panchayats Act, 1993. In such judgment, heavy reliance was placed on the judgment of Supreme Court in the case of Vadievelu v. Sundaram & Ors . [Supra]. Interestingly, while deciding the issue in the context of Section 31 of the Act, the Court noticed and referred only to sub-sections 1 to 3 thereof. There was no reference to the provisions contained in sub-section [7] of Section 31 of the Act and in particular, clause [b] thereof.

¶134

In the present case, we find that the petitioner all along during the course of counting had been objecting to the manner in which counting of votes was being carried out. As many as five objection applications were filed. Four of them during the conduct of counting and the last [Exh. 57] as soon as counting was over, total tally of votes on the basis of such counting of votes had crystallized, but result of the election was yet not declared. The petitioner had objected to the postal ballots being accepted as valid. She had objected to the treatment of counting of invalid votes and NOTA votes; had objected to the counting being abruptly suspended and finally under application Exh. 57, disputed the entire counting and

¶135

Page 24 of 28

¶136

C/SCA/15443/2017 JUDGMENT

¶137

asked for recount. As per Rules, this was the correct stage for asking for recount of votes. Strangely, Election Officer put his remark on the application Exh. 57 that he was willing to grant recount of the bundle of 50 votes each, but the candidate insisted on total recount which was not permissible according to the rules. He further remarked that the candidate and other election agent did not agree, and therefore, application was rejected.

¶138

The treatment to this application of the petitioner Exh. 57 by the Election Officer was utterly erroneous. There is no procedure or rule which limits the scope of recounting by the Election Officer to merely count the number of votes in bundle of 50 each which might have been stacked by then at the end of normal phase of counting. The petitioner had serious disputes about the very counting procedure itself. She did not have to accept the formula of limited counting even if it was recognized in the rules. The Election Officer could have rejected her application on some valid ground, but certainly not on the ground that she did not agree to partial counting.

¶139

Perhaps, even this much was not sufficient for the petitioner to ask for recount before the Court. All these factors

¶140

Page 25 of 28

¶141

C/SCA/15443/2017 JUDGMENT

¶142

were referred only to demonstrate that the petitioner was serious about recount from the outset. She had filed election petition in which the main ground was that invalid votes were counted and counted in favour of the returned candidate wrongly. She in fact filed an interim application for recounting. This Court upturned decision of lower appellate court accepting such a request by way of interim measure and instead requested the Election Judge to pass a final order expeditiously in terms of sub-section [3] of Section 31, after bearing in mind provision of clause (b) of sub-section [7] thereof. The petitioner’s final prayer was for setting aside the election of the respondent no. 2. Her foundation of the election petition was that the votes were wrongly counted and that recount therefore should happen. The petitioner was not required to specifically pray in the election petition that recounting be ordered and thereafter result of the election be amended. We have dedicated this discussion since counsel for the Election Commission has argued that in absence of any final prayer for recount made in the election petition, the same may not be granted.

¶143

Page 26 of 28

¶144

C/SCA/15443/2017 JUDGMENT

¶145

Coming to the central question, the record would suggest that the petitioner had successfully established before the Election Judge that out of 32 as many as 31 postal ballots were invalid. They did not carry necessary gazette certificate. In a postal ballot, the authenticity of the voter assumes considerable significance since unlike the normal casting of vote, the voter would not be present before the Polling Officer. The vote would only be sent through post. The identity of the sender would therefore become important. If the necessary procedural safeguard, while issuing the postal ballot is not maintained, the postal ballot can be obtained by an unauthorized person and can be forwarded by post by him, thereby leading to bogus voting. This aspect, the petitioner had brought to the notice of the Election Officer at the time of counting. He brushed aside the objection and held that the ballots were valid. Before the Election Officer as well as the Court, the petitioner had been contending that this was not the only irregularity conducted during the counting of votes.

¶146

The material on record cumulatively is in our opinion sufficient to permit recounting of votes. Bearing in mind the legislative mandate expressed in clause (b) of sub-section [7] of

¶147

Page 27 of 28

¶148

C/SCA/15443/2017 JUDGMENT

¶149

Section 31 of the Act and the unimpeachable facts noted above would lead to only one conclusion, namely, that the trial Court committed an error in not recounting the votes before disposing of the election petition.

¶150

In the result, Special Civil Application is allowed. Judgment of the Election Judge is set-aside. The learned Judge shall carry out recounting of votes and thereafter pass appropriate order on the basis of outcome of such exercise. This shall be done within a period of four weeks from the date of receipt of copy of this judgment. Petition is disposed of.

¶151

At the request of learned advocate for the respondent no. 2, effect of this judgment is suspended till 31^st July 2018.

[Akil Kureshi, J.]

[B.N Karia, J.]

Prakash

Page 28 of 28

Meghaben Datteshkumar Amin v. the State Election Commission

Case brief

What is this about?

What did the court decide?

Meghaben Datteshkumar Amin v. the State Election Commission

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Meenaben Mukeshbhai Suthar Vs Madanbhai Premjibhai Suthar

Abdulmajidkhan Abdullakhan Pathan Vs Rizvanabanu Shahnawazkhan Pathan

Dasrathlal Khushaldas Gurjar Vs Bhavna Dasrathlal Gurjar

Cadila Health Care Pvt. Ltd. Vs Union of India

Muktaben Ravji Patel (Chovatiya) L.H. of Decd. Ravji Valji Patel (Chovatiya) Vs the State of Gujarat

Ranchodbhai Kanjibhai Bhagat Vs Meeraben Ranchodbhai Bhagat D/O Sunjibhai Rathwa