DESHBANDHU KRUSHNARAO GULHANE Vs. DINKAR KRUSHNARAO DESHMUKH

JUDGEMENT

(1.) - The question which arises for consideration in this writ petition is whether the District Judge hearing an election petition under section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as the Act) can order recount of votes even though sufficient grounds are not made out by the party applying for the same. This question arises in the following circumstances.

(2.) The petitioner and respondents Nos. 1, 5, 6 and 7 contested the elections to the Zilla Parishad held on 22-5-1979. The petitioner secured 2815, respondent No. 1, 2806, respondent No. 5, 1040, respondent No. 6, 112 and respondent No. 7, 970 Votes respectively. The petitioner having secured highest number of votes was declared elected. Being aggrieved by this result of the election, respondent No. 1 challenged the validity of this election under section 27 of the Act. Respondent No. 1 inter alia contended in his petition that before the final declaration of the result, the Returning Officer had made a declaration in form No. XI under rule 60 (7) of Zilla Parishad Election Rules (hereinafter referred to as the Rules), and that soon thereafter one Ashok Gopalrao Deshmukh, election agent of respondent No. 1, had applied to the Returning Officer for recount of ballot papers under sub-rule (2) of rule 64 of the Rules. According to respondent No. 1, Ashok Deshmukh had submitted in his application that there were mistakes committed in the counting of votes of the various candidates and also in the scrutiny of invalid ballot papers and on this ground recount of votes was necessary. Respondent No. 1 further stated that it had been brought to the notice of the Returning Officer that the counting agents apprehended that votes polled by other candidates had been wrongfully included in the votes polled by the present petitioner, in the process of counting at tables Nos. 5 and 6. According to respondent No. 1, it was mandatory for and incumbent on the Returning Officer to have granted the recount as the application made by Ashok Deshmukh was not frivolous and was made on behalf of a person who had bright chances of being elected as the difference of votes was very slender. Thus according to respondent No. 1 the application of Ashok Deshmukh had been wrongly rejected by the Returning Officer. He complained that because of the wrongful declaration of the final result by the Returning Officer, his rightful claim to be councillor had been violated and a person who according to his apprehension had secured less votes had been illegally declared elected. The only averments with regard to recount of ballot papers by the learned Judge, are contained in para. 19 of the election petition and they are as follows:-

(3.) This election petition came up for hearing before the learned Assistant Judge. The learned Judge examined respondent No. 1 and his elections agent, namely, Ashok Gopalrao Deshmukh and also the Returning Officer, namely, Arrant Awasare who is respondent No. 4 herein. After considering the evidence of these witnesses, the learned Judge proceeded to record his order on 16-11-1979. It may be stated at this stage that the present petitioner had opposed the prayer of respondent No. 1 for recount or scrutiny and computation of votes as according to him, no ground was made out in that behalf. After considering the evidence which was adduced before him, the learned Judge came to the conclusion that "a case is made out for the scrutiny and computation of votes within the ambit of section 27 (5) (b) of the Act." On behalf of the present petitioner, it was submitted before the learned Judge that the scope of the said clause was very limited and if read in the context of sub-rule (2) of rule 64 of the Rules, no recount could be granted to the election petitioner unless and until valid grounds are made out. The counsel on behalf of the petitioner sought to rely on three rulings of the Supreme Court in Baliram Vs. Jai Behari Lal, A I R 1975 S C 283. Suresh Prasad Vs. Jai Prakash, A I R 1975 S C 376 and Chanda Singh Vs. Shiv Rams, A I R 1975 S C 403 in support of his submission. However, the learned Judge held that in the circumstances of the instant case he was inclined to think that they were not applicable to the facts of the case. It is pertinent to observe that the learned Judge held that the objection of the present petitioner to the scrutiny and computation of votes under section 27 (5) (b) of the Act could not be sustained because there is nothing in the language used in that provision to show that some grounds are required to be stated before the Court takes up the work of scrutiny and computation of votes in such election petition. However, the learned Judge held that the grounds had been made by the agent of respondent No. 1 before the Returning Officer and according to the learned Judge, that was sufficient to attract the provisions of section 27 (5) (b) of the Act. Now the only ground on which the learned Judge sought to have relied for the purpose of ordering the recount was that respondent No. 1 had in clear terms stated that the work of counting of votes was done hurriedly. In the view, which the learned Judge took, he appointed a Commissioner for carrying on scrutiny and computation of votes and it is against this order that the present writ petition has been filed.