JAYANTILAL MOHANLAL RANVA Vs. ELECTION OFFICER AMRELI NAGARPALIKA

JUDGEMENT

(1.) The order passed by the learned District Judge of Amreli on 21st January 1995 below the application at Ex. 4 in Election Petition No. 1 of 1994 is under challenge in this petition under Arts. 226 and 227 of the Constitution of India. By his impugned order, the learned District Judge inter alia ordered that evidence be recorded for the purpose of deciding the election petition filed by and on behalf of the present petitioner.

(2.) The facts giving rise to this petition move in a narrow compass. The elections to the Municipality at Amreli were held some time in December 1994. Counting of votes inter alia of Ward No. 11 took place on 22 December 1994. It appears that the counting of the said Ward was over around 8.15 p.m. Respondent No. 2 was declared elected. He was found to have secured 18 votes more than the petitioner. The petitioner thereupon applied for recounting on that very day before the Election Officer (Respondent No. 1 herein). By his order passed therebelow on that very day, respondent No. 1 rejected it. A copy of the petitioner's application and the order passed therebelow by respondent No. 1 on 22nd December 1994 is at Annexure A to this petition. The petitioner thereupon filed an election petition before the District Court at Amreli under Sec. 14 of the Gujarat Municipalities Act, 1963 ('the Act' for brief). Its copy is at Annexure B to this petition. It came to be registered as Election Petition No. 1 of 1994. In the said petition an application for interim relief for preservation of the entire record including the ballot papers till the stage of declaration of the result of Ward No. 11 was moved. It was taken on record as Ex. 4. Its copy is at Annexure C to this petition. After hearing the parties, by his order passed on 21st January 1995 below the said application at Ex. 4, the learned Judge partly accepted it but, however directed recording of evidence to decide the dispute raised in the main matter. A copy of the aforesaid order passed by the learned District Judge is a part of Annexure C to this petition. The aggrieved petitioner has there upon approached this Court be means of this petition under Arts. 226 and 227 of the Constitution of India for questioning its correctness.

(3.) It is difficult to agree with the submission urged before me by learned Advocate Shri Karia for the petitioner that no enquiry was necessary and the learned Judge below ought to have ordered recounting in view of Sec. 14(5) of the Act. The reason thereof is quite simple. It transpires from the order passed by respondent No. 1 at Annexure A to this petition that counting was done in lots of 50 votes and, according to respondent No. 1 at no point of time on conclusion of counting of any lot of 50 votes, the petitioner raised any objection with respect thereto. In other words, according to the order passed by respondent No. 1 at Annexure A to this petition, no error in counting of votes was pointed out by or on behalf of the petitioner at the stage of counting of every lot of 50 votes. In this election petition at Annexure B to this petition, the petitioner has pleaded that counting was not done in lots of 50 votes but at a stretch in one lumpsum. It cannot be gainsaid that the dispute was with respect to the manner and method of counting of votes so far as Ward No. 11 was concerned. There were two rival versions in that regard. The dispute in that regard would certainly involve a question of fact. It could be decided only by recording evidence. Without recording of evidence, it could not have been decided. In that view of the matter, Sec. 14(5) of the Act could not have been pressed into service without enquiring into the manner and method of counting of votes qua Ward No. 11.