SCA/807/1995 of JAYANTILAL MOHANLAL RANVA Vs ELECTION OFFICER on 12 July 1995

ORAL JUDGMENT

The order passed by the learned District Judge of Amrelion 21st January 1995 below the application at Ex.4 inElection Petition No. 1 of 1994 is under challenge in this petition under Articles 226 and 227 of the Constitution ofIndia. By his impugned order, the learned District Judgeinter alia ordered that evidence be recorded for the purposeof deciding the election petition filed by and on behalf ofthe present petitioner.

2. The facts giving rise to this petition move in a narrowcompass. The elections to the Municipality at Amreli wereheld some time in December 1994. Counting of votes interalia of Ward No. 11 took place on 22nd December 1994. Itappears that the counting of the said Ward was over around8.15 p.m. Respondent No.2 was declared elected. He wasfound to have secured 18 votes more than the petitioner. Thepetitioner thereupon applied for recounting on that very daybefore the Election Officer (Respondent No.1 herein). By hisorder passed therebelow on that very day, respondent No.1rejected it. A copy of the petitioner's application and theorder passed therebelow by respondent No. 1 on 22nd December1994 is at Annexure A to this petition. The petitionerthereupon filed an election petition before the DistrictCourt at Amreli under sec. 14 of the Gujarat MunicipalitiesAct, 1963 ('the Act' for brief). Its copy is at Annexure Bto this petition. It came to be registered as ElectionPetition No.1 of 1994. In the said petition an applicationfor interim relief for preservation of the entire recordincluding the ballot papers till the stage of declaration ofthe result of Ward No. 11 was moved. It was taken on recordas Ex. 4. Its copy is at Annexure C to this petition.After hearing the parties, by his order passed on 21stJanuary 1995 below the said application at Ex. 4, thelearned Judge partly accepted it but however directedrecording of evidence to decide the dispute raised in themain matter. A copy of the aforesaid order passed by thelearned District Judge is a part of Annexure C to thispetition. The aggrieved petitioner has thereupon approachedthis court by means of this petition under Articles 226 and227 of the Constitution of India for questioning itscorrectness.

3. It is difficult to agree with the submission urgedbefore me by learned Advocate Shri Karia for the petitionerthat no enquiry was necessary and the learned Judge belowought to have ordered recounting in view of sec. 14(5) ofthe Act. The reason therefor is quite simple. It transpiresfrom the order passed by respondent No.1 at Annexure A tothis petition that counting was done in lots of 50 votes and,according to respondent No.1, at no point of time onconclusion of counting of any lot of 50 votes, the petitionerraised any objection with respect thereto. In other words,according to the order passed by respondent No.1 at AnnexureA to this petition, no error in counting of votes was pointed

out by or on behalf of the petitioner at the stage ofcounting of every lot of 50 votes. In his election petitionat Annexure B to this petition, the petitioner has pleadedthat counting was not done in lots of 50 votes but at astretch in one lumpsum. It cannot be gainsaid that thedispute was with respect to the manner and method of countingof votes so far as Ward No.11 was concerned. There were tworival versions in that regard. The dispute in that regardwould certainly involve a question of fact. It could bedecided only by recording evidence. Without recording ofevidence, it could not have been decided. In that view ofthe matter, sec. 14(5) of the Act could not have beenpressed into service without enquiring into the manner andmethod of counting of votes qua Ward No. 11.

4. The learned Judge has rightly relied on the bindingruling of the Supreme Court in the case of S. Narayanan v.S. Semmalai reported in AIR 1980 SC 206 for the purpose ofcoming to the conclusion that recounting of votes cannot beordered for mere asking. The learned Judge below has rightlyrefused to distinguish the aforesaid binding ruling of theSupreme Court on the ground that it was rendered in thecontext of the Representatives of People Act whereas the caseon hand involved the enactment pertaining to municipalelections. It cannot be gainsaid that our country hasadopted democratic set up based on the parliamentary systemeven at grass-root levels like municipalities and panchayats.The Representatives of People Act governs the process ofelections for the Central and the State legislatures. Thesame principle for governance of the democratic set up ofthis country should be made applicable for elections to theelected bodies of local authorities. In that view of thematter, the aforesaid binding ruling of the Supreme Courtcould not have been distinguished on the ground that itpertained to the Representatives of People Act and not to theAct pertaining to municipal elections.

5. Since it is a settled principle of law that recountingcould not be ordered for mere asking, no resort could havebeen taken to sec. 14(5) of the Act without first of alldeciding the dispute regarding the manner and method ofcounting of votes qua Ward No. 11.

6. In view of my aforesaid discussion, I find no merit orsubstance in this petition. The impugned order passed by thelearned Judge below calls for no interference by this courtin this petition under Articles 226 and 227 of theConstitution of India.

7. In the result, this petition fails. It is herebyrejected. Rule is accordingly discharged however with no order as to costs. Since the learned Judge ordered recordingof evidence from day to day on and from 15th February 1995,it would be desirable to see that the election petition inquestion is disposed of as expeditiously as possible.

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hn/sca.807.95