The requirement of evidence to prove that the result of the election was materially affected due to a defect in the Electronic Voting Machine is essential for granting relief under Article 226 of the Constitution of India.

JUDGMENT :

A.S. Chandurkar, J.

RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

2. In the elections for the post of Sarpanch at Gram Panchayat Sheri (Budruk), Tahsil Telhara, District Akola, the said post was reserved for Ladies (General Category). The petitioner and the second respondent were the only contestants in the said election. Gram Panchayat Sheri (Budruk) was divided into three Wards. In Ward No.1 there were 461 voters, in Ward No.2 there were 357 voters and in Ward No 3 there were 440 voters. The elections were held on 18.12.2022 in which 385 voters from Ward No.1 exercised their right of franchise; 317 voters exercised their right of franchise from Ward No.2; while 317 voters exercised their right of franchise from Ward No.3. It is the case of the petitioner that when the vote of 235th voter was being cast from Ward No.1 there was some defect in the Electronic Voting Machine as a result of which the said Electronic Voting Machine was required to be changed. After change in the Electronic Voting Machine, remaining voters cast their votes. The votes were counted on 20.12.2022. Though 1019 voters had cast their votes it was shown that only 1018 votes had been counted. From Ward No.1 though 385 votes were shown to have been cast, the votes counted were only 384. The result of the said election was declared by the first respondent. While the petitioner was shown to have polled 507 votes the second respondent was shown to have polled 508 votes. Three voters did not cast their votes in favour of either of the candidates. The second respondent was declared elected by a margin of one vote. An objection was raised by the petitioner before the first respondent. After re-count the results were declared and the second respondent was elected as Sarpanch. Being aggrieved the petitioner has prayed that the election of the second respondent as Sarpanch be set side and an enquiry be held in the matter of difference in the number of votes polled and votes counted.

3. At the outset, Shri O.Y. Kashid, learned counsel appearing for the second respondent raised an objection to the maintainability of the writ petition on the ground that under Section 15 of the Maharashtra Village Panchayats Act, 1959 (for short, ‘the Act of 1959’) the remedy of questioning the validity of an election was available before the Civil Court. Since the petitioner was challenging the election of the second respondent, the aforesaid statutory remedy ought to be availed by the petitioner. Referring to the complaint made by the petitioner before the first respondent it was submitted that the statements made therein indicated that the petitioner was alleging conspiracy on the part of the rival group as a result of which there was a difference of one vote secured by the petitioner. In other words, it was submitted that the matter would require recording of evidence and such course was permissible only under the statutory remedy as provided. It was not the case of the petitioner that there was an error in calculating the number of votes polled. It therefore could not be said that the remedy under Section 15 of the Act of 1959 was not available to the petitioner. It was thus submitted that the writ petition as filed may not be entertained and the petitioner be relegated to the Civil Court to avail the remedy provided by Section 15 of the Act of 1959. Moreover though the elections in question were held on 18.12.2022 the grievance in this regard was raised only after counting of the votes on 20.12.2022. Hence there was no reason to exercise jurisdiction under Article 226 of the Constitution of India.

4. Shri S.D. Chopde, learned counsel for the petitioner submitted that a ground based on defect in the Electronic Voting Machine could not be raised while challenging the results declared at the election of the Sarpanch. Since no remedy to challenge an election on the ground that there was a defect in the Electronic Voting Machine was available