JAVANJI BHIKHAJI SOLANKI (RAJPUT) Vs. VALJIBHAI HIRABHAI CHAUDHARY

JUDGEMENT

(1.) This petition under Articles 226 and 227 of the Constitution challenges the order dated 20.01.2007 passed by the Election Tribunal i.e. Principal Senior Civil Judge, Palanpur at Banaskantha below application Exh.20 in Election Petition No.1 of 2006 by which the Election Tribunal had appointed the Court Commissioner for recounting the votes cast at the election of Sarpanch of Vesa Gram Panchayat in Banaskantha District.

(2.) The elections at Vesa Gram Panchayat were held on 10.12.2006. The petitioner herein as well as respondent No.1 contested for the office of Sarpanch. As per the results declared on 12.12.2006, the petitioner was declared elected by majority of one vote. Respondent No.1 applied for recounting of the votes before the Returning Officer. The Returning Officer rejected his application. On 14.12.2006, respondent No.1 herein presented Election Petition before the Principal Civil Judge, Banaskantha at Palanpur. Respondent No.1 also presented application Exh.5 for appointing Court Commissioner for bringing the ballot boxes before the Election Tribunal. On that application, the Tribunal passed an order appointing the Court Commissioner to bring the boxes before the Tribunal on 16.12.2006. Respondent No.1 filed a further application at Exh.20 for a direction to the Court Commissioner to open the seals on the ballot boxes and recounting the votes. That application came to be allowed by the Election Tribunal. At the instance of the petitioner, the Tribunal stayed operation of that order for a period of 15 days. The petitioner, thereafter, moved this Court and this Court while admitting the petition on 05.02.2007, granted interim order staying operation of the impugned order dated 20.01.2007.

(3.) In the facts and circumstances of the case, we are of the view that the Election Petitioner has to make out a case for recounting of votes and that such a prayer for recounting could not have been granted merely for the asking. There are several decisions of the Apex Court laying down the principles when an order for recounting would be warranted and justified. Hence, evidence would have to be led by the parties before the Court can arrive at a conclusion that the order for recounting would be warranted and justified.