GOVERNMENT OF GUJARAT Vs. ELECTION OFFICER OF VISNAGAR

JUDGEMENT

(1.) Brief facts of special civil application No. 9945 of 2001 filed by PRAHLADBHAI KHEMCHANDDAS PATEL are to the effect that the petitioner is the resident of Kansa; the petitioner is the voter of the said village; that the election commission issued a notification for the purpose of holding the elections of different Taluka panchayats in the State of Gujarat. Accordingly, a notification with respect to the holding of the elections of Taluka panchayat, Visnagar came to be published by the Secretary of the Election Commission, State of Gujarat vide notification dated 28/08/2000. According to the petitioner, Visnagar Taluka Panchayat is allotted various seats and one of such seats is for village Kansa which is called Seat No. 11 Kansa-1. Accordingly, notice for the same came to be published. According to the petitioner, he filled in the form as a candidate belonging to the Indian National Congress for the purpose of contesting the election of Seat No.11 of Kansa-1 of Visnagar Taluka Panchayat. Respondent No.2 herein had filled in his nomination paper as a candidate belonging to the Bharatiya Janata Party. According to the petitioner, the election of the Taluka Panchayat,Visnagar came to be held on 24/09/2000 in which so far as seat No. 1 of Kansa - 1 is concerned, there were nine booths. According to the petitioner, in all, there were 5100 voters for this seat out of which in nine booths, 5098 votes were polled out of which 112 votes were declared invalid. According to the petitioner, he secured 2488 votes and the respondent No.2 herein secured 2502 votes and, thus, there was a margin of 14 votes between the petitioner and respondent No.2 herein. According to the petitioner, at the time of counting of the votes, since there were large scale irregularities having been committed by respondent No.2 and his supporters with the help and aid of respondent No.1 and his counting agents, the petitioner submitted an application to the returning officer for recounting of the votes, immediately after the counting so that the recounting can be effected immediately. According to the petitioner, the election officer, by order dated 29th September, 2000, rejected the application for recounting of votes and in view of that, respondent no.2 herein came to be declared elected as the candidate from I Kansa Seat of Visnagar Taluka Panchayat and in view of that, the petitioner filed Election Petition No.1 of 2000 in the Court of the learned Civil Judge, J.D., Visnagar under section 3 of the Gujarat Panchayats Act,1993 within the period of fifteen days from the date of declaration of the result as envisaged under the said Act, on 5th October, 2000. Alongwith the said election petition, the petitioner also enclosed a list of documents. The petitioner also filed an application on 10th January, 2001 wherein it has been requested to place into custody the ballot papers and accordingly, the ballot papers were ordered to be kept in custody of the Court vide order passed by the Election Tribunal below Exh. 18. Thereafter, in the proceedings, the petitioner also filed affidavits of Election Agents from Exh. 21 to 28. In the affidavits filed by the Election Agents, it has been stated that the counting of votes was done in such a manner that it was not possible to find out in which lot the votes were put and differentiation of votes could not be properly made. It has also been stated in the said affidavits filed by the Election Agents that Shri Prahladbhai Patel, the MLA belonging to the B.J.P. and Shri Jeshbhai Patel, the District President of the B.J.P. were moving around the place and were trying to influence the Election Officer/Returning Officers. However, according to the petitioner, the learned Civil Judge,J.D., Visnagar, by his order dated 29th September, 2001,dismissed the said Election Petition and the said order dated 29/09/2001 passed by the Election Tribunal is under challenge in this petition.

(2.) Alongwith the petition, the petitioner has produced notification of election dated 28/08/2000; notice of election dated 28/08/2000; copy of the result of the election dated 29/09/2000; copy of an application for recounting of votes addressed to the Election Officer dated nil has been produced at annexure-D. The petitioner has also produced the decision given by the Election Officer on his application for recounting of votes on 2 9/09/2000. The petitioner has also produced copy of election petition filed before the learned Civil Judge,J.D., Visnagar dated 5.10.2000. List of candidate in respect of Kansa-1 has also been produced at annexure-F to the petition. The petitioner has also produced list of documents produced before the tribunal. The petitioner has also produced copy of the application dated 10/01/2001 wherein request has been made by the petitioner to take in custody the election literature and ballot papers. The petitioner has also produced copies of the affidavits of the Election Agents which were produced by the petitioner before the Election Tribunal. The petitioner has also produced two circulars dated 2 5/08/1999 and 1st January,2000 issued by the State Election Commission and the decision of the Election Tribunal dated 29th September, 2001.

(3.) Initially, on behalf of the election officer, affidavit in reply dated 4th July,2002 has been filed and, thereafter, the election officer has filed another affidavit in reply on 14th August,2002. Copy thereof has been served upon the petitioner and the other respondent.