JAGDISH CHOLERA Vs. HARESH S CHAVDA

JUDGEMENT

(1.) By way of this Special Civil Application under Arts. 226 and 227 of the Constitution of India, the petitioner has challenged the order of the learned District Judge, Junagadh in Civil Misc. Application No. 175/94 dated 26.4.1995 whereby the learned Judge has ordered for recounting of the entire votes polled at the Junagadh Municipality Election of Ward No. 10. The brief facts giving rise of the present writ petition are that the petitioner having secured highest number of votes though with the margin of 2 votes only, he was declared elected a Councillor for Ward No. 10 of Junagadh Municipality in the elections held in December, 1994. The defeated candidate-Respondent No. 1 challenged the said election by way of filing election petition before the District Judge, Junagadh. The case of the election petitioner is that some ballots were carrying identification mark as name of the village Dubli written thereon and as such, objection in that regard was raised and prayer was made for recounting. Returning officer conceded the request for recount, but he ordered for recount of rejected ballots only as a initial measure, which was undertaken. The Returning Officer thereafter rejected the prayer for recount of entire ballot papers. After receiving the reply, the learned District Judge directed the parties to file affidavit to prove their cases. The Court framed following points :

(2.) What order?" The learned Judge, after hearing the parties, accepted the prayer for recount on the ground that though the Returning Officer was satisfied initially for recount, in order to minimise the labour he initially confined it to 138 rejected ballots, but then he was unjustified in declining for entire recount. The Court expressed the view that in such a situation, even if no details have been pointed out, the prayer for recount should not be declined.

(3.) I have heard Mr N.D. Nanavati, learned Sr. Advocate for the petitioner and Mr J.S. Yadav, for respondent No. 2. It is contended by Mr. Nanavati that the learned Judge adopted an approach which is perverse being in disregard to settled position of law in the matter of order of recount in election matters. It is submitted by Mr. Nanavati that the order of recount cannot be made simply on the mere possibility of error. He further submits that there cannot be any order only for the reason that there is a small margin of votes. He referred to various decisions of the Apex Court. Those are 1980 (2) SCC 537, 1993 (Suppl.) SCC 82, 1990 (Suppl.) SCC 616, 1989 (1) SCC 526, and a judgment of those Court reported in 1996 (1) GLR 11. I have gone throught all the judgments cited by the learned Advocate for the petitioner. I do not propose to burden this judgment by dealing with all those cases for the reason that law on the subject is absolutely clear and in fact the learned Judge has referred to some of the decisions of the Apex Court and he has rightly understood the law which is evident from the ratio of the cases as stated by him, the extract of which is as under :