HABIBBHAI VAJIRBHAI CHAUDHARI Vs. MAGANBHAI ARJANBHAI DESAI

JUDGEMENT

(1.) The petitioner who was initially declared as elected as Sarpanch of the Dashavada Gram Panchayat by the Returning Officer on 24th February, 1992 and suffered a set back in the Election petition filed by respondent No. 1 challenges the order dated 14th December, 1994 passed by the learned Civil Judge (J.D), Sidhpur in Election Petition No. 1 of 1992, by which the respondent No. 1 was declared elected as the Sarpanch of the Panchayat on the ground that he had secured higher number of votes than the petitioner.

(2.) The election of Sarpanch of the said Panchayat was held on 23rd February, 1992 and the petitioner was declared as elected by the respondent No. 2 having secured 608 votes as against 592 votes secured by the respondent No. 1. At that time 16 ballot papers were rejected and one ballot paper could not be traced. The respondent No. 1 thereupon filed the Election Petition under Sec. 24 of the Gujarat Panchayats Act, 1961 on various grounds challenging election of the petitioner. It was alleged in the petition that some voters had voted twice and that undue pressure was brought upon some voters, and that the votes were also cast in the name of dead persons. It was alleged that these irregularities were caused at the instance of the petitioner. It was also alleged that there was a difference of only 16 votes and though the respondent No. 1 had requested for recounting the votes, the respondent No. 2 had rejected that request. The allegations made by the respondent No. 1 in the Election Petition were controverted by the petitioner in his reply dated 23rd March, 1992.

(3.) On 26th February, 1992, an application was made by the respondent No. 1 at Ex. 7 praying for recounting the votes through a Court Commissioner. Thereupon by order dated 16th April, 1992 the learned Judge after hearing the parties, granted the request for recounting of votes and appointed a Court Commissioner for the purpose, who was required to count the votes in the presence of the parties and their learned Advocates and to place the disputed ballot papers beofre the learned Judge for his decision. It appears that on 4th April, 1994 the petitioner made an application Ex. 65 requesting that the work of recounting should not be done without allowing evidence to be led. It was also prayed that the order appointing Commissioner for the purpose should be recalled. The learned Judge made an order on this application on the same day, rejecting the application on the ground that the reasons given in the application were applicable to the stage of final decision making and that there was no reason to halt the proceedings undertaken by the Commissioner. Ultimately, the Commissioner submitted his report to the learned Judge, a copy of which is placed on record. By this report the Commissioner placed before the learned Judge separately the ballot papers which were objected to by the parties alongwith the ballot papers which were not disputed. As per this report, out of the undisputed ballot papers, respondent No. 1 (symbol of Horse) had secured 529 votes while the petitioner (symbol of Scales) had secured 467 votes. There were 220 disputed ballot papers. The learned Judge took into account this report and proceeded to scrutinise 220 disputed ballot papers. From these disputed votes the learned Judge found that 33 were validly cast in favour of the respondent No. 1 and 67 were validly cast in favour of the petitioner.The remaining 120 ballot papers were rejected as void and from the record it appears that out of these 120 invalid ballot papers, 104 votes were declared void on the ground that the Presiding Officer had not put his signature on the reverse of these ballot papers. The remaining 16 ballot papers were held to be invalid for want of seals or having double seals or having a signature and no seal. The learned Judge rejected the ballot papers for want of signature of the Presiding Officer on their reverse on the ground that there was violation of the statutory requirement contained in Rule 22(i) of the Gujarat Gram and Nagar Panchayats Election Rules, 1962.