VIVEKANAND Vs. COLLECTOR, DIST. BHANDARA

JUDGEMENT

(1.) Rule. Heard finally with consent of counsel for the parties.

(2.) The facts giving rise to the present proceedings are that on 04/07/2015 elections were held to Zilla Parishad, Bhandara in which the petitioner in Writ Petition No.4998/2018 came to be elected. The constituency from which the said petitioner contested was Kondakosra, Taluka Pavni. The petitioner polled 2657 votes while the respondent No.4 polled 2662 votes. However, when the results were declared, the petitioner was declared elected having polled 2714 votes while the respondent No.4 had polled 2672 votes. The respondent No.4 being aggrieved by the election of the petitioner filed Election Petition No.2/2015 under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (for short, the Act of 1961). By the judgment dated 13/07/2018 the learned Principal District Judge recorded a finding that there was no irregularity committed when the votes were counted however in accordance with the principles of natural justice a recount ought to have been granted. Accordingly the election petition was partly allowed and the Returning Officer was directed to conduct re-count of the votes with notice to the candidates and thereafter to submit a fresh report in Court. The returned candidate being aggrieved by this direction has preferred Writ Petition No.4998/2018 while the original election petitioner has preferred Writ Petition No.3565/2019.

(3.) Shri D. V. Chauhan, learned counsel for the returned candidate submitted that the learned Principal District Judge committed an error in partly allowing the election petition and ordering recount of the votes. According to him such recount could not have been ordered merely for the asking and unless there was a clear case made out in that regard no direction to recount the votes could have been directed. He referred to the provisions of Rule-64(2) of the Maharashtra Zilla Parishads (Electoral Divisions and Conduct of Election) Rules, 1962 (for short, the Election Rules) and submitted that unless a clear case in that regard was made out by the election petitioner no direction to recount the votes could have been issued. He then submitted that even under provisions of Section 27 of the Act of 1961 such direction could not have been issued. On finding absence of any irregularity in the process of counting of votes which finding was specifically recorded in paragraph 14 of the impugned judgment, the direction of recount was without jurisdiction. Moreover even in the election petition that was filed under Section 27 of the Act of 1961 no relief seeking recount of the votes had been prayed for. In support of his submissions the learned counsel relied upon the decision in Tukaram s/o Asaram Jadhav vs. Laxman s/o Dhanaji Bhojne and ors. (2003) 105 (4) Bom LR 321 as well as judgment of the learned Single Judge in Santosh Laxman Jadhav vs. Sachin Shivram Kolape and ors. 2015 SCC Online Bom 5414. He therefore submitted that the learned Principal District Judge ought to have dismissed the election petition in its entirety.