Important Point:
a) In an election petition there is no question of breach of contract or proceedings for breach of contract and so far as injury is concerned, it must be legal injury from the action contemplated by the other party to the proceedings. Under section 14 the only inquiry that is permissible to the Election Tribunal is an inquiry regarding validity of election of a councillor and there is no question of any legal injury which the applicant before the Election Tribunal can suffer from and therefore even that part of Rule 2 of Order 39 which speaks of "other injury of any kind" will not be applicable to proceedings challenging the validity of an election. b) The Civil Judge is devoid of power of granting interim injunction/relief in an election petition while examining the validity of an election under section 31 of the Act of 1993. The power to grant interim injunction in an election petition filed under section 31 of the Act of 1993 is not embodied in such provisions since the election petition does not envisage an action of civil law or inequity.

A.S. Supehia, J.

1. Since the issue raised in these writ petitions is common, the same were taken up for final hearing together and are disposed of by this common judgment.

2. In Special Civil Application No. 723 of 2017, the petitioner has assailed the order dated 13.01.2017 passed below Exh.1, by the Judicial Magistrate, First Class, Mansa, in Election Petition No. 1 of 2017, whereby the interim prayer for staying the implementation and operation of the result dated 29.12.2016 declared in favour of respondent No. 3 by the Election Commission is rejected.

3. In Special Civil Application No. 1507 of 2017, the petitioners have challenged the Order dated 23.01.2017 passed below application Exh.5 in Election Petition No. 1 of 2017 whereby the elected representatives have been restrained from discharging their administrative powers and recounting is also ordered.

4. The dispute in the present petitions arises out of granting and refusing an interim injunction filed in the election petitions challenging the elections under section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred as "the Act of 1993")

5. Relevant facts from each of the petition are incorporated as under

IN SPECIAL CIVIL APPLICATION No. 723 OF 2017

"(i) The election of Babupura Gram Panchayat was held on 27.12.2016 and counting thereof was held on 29.12.2016. The elections were concluded on 03.01.2017. It is the case of petitioner that 71 votes were deliberately misplaced in order to favour respondent no. 3.

(ii) Eventually, after recounting of the votes, the petitioner was declared as unsuccessful candidate by a margin of 35 votes as compared to respondent No. 3. The petitioner immediately on 29.12.2016, filed a complaint with the Election Officer regarding the lost/misplaced ballots so that the Election Officer reports the same to the Commissioner and take appropriate action under rule 49 of the Gujarat Panchayats Election Rules, 1994 (hereinafter referred as "the Rules").

(iii) As the Election Officer remained indolent, the petitioner filed Special Civil Application No. 22002 of 2016 before this Court, which came to be dismissed on the ground of alternative remedy. Thereafter, the petitioner filed Election Petition No. 1 of 2017 wherein, vide order dated 13.01.2017 passed below Exh.1, Judicial Magistrate, First Class, Mansa, rejected the interim prayer of staying implementation and operation of the result dated 29.12.2016 by observing that section 31 of the Act of 1993 does not confer such power on him."

IN SPECIAL CIVIL APPLICATION No. 1507/2017

"(i) The State Election Commission declared election programme for holding election of Sarpanch and members of Gram Panchayat of Village Nyara, Taluka Padadhari, District Rajkot, on 27.11.2016 by issuing a notification. The date of polling was fixed on 27.12.2016 and the date of counting was fixed on 29.12.2016. There were eight wards in Nyara Gram Panchayat divided in eight constituencies.

(ii) Petitioners No. 1 and 2 contested for the post of Sarpanch. From the panel of the petitioners which comprised of seven candidates, three candidates were elected, whereas from the panel of respondent No. 2, four candidates were elected. In the election of Sarpanch, petitioner No. 1 was declared elected by four votes. Respondent No. 2 presented Election Petition No. 1 of 2017 on 13.01.2017 before the Principal Civil Judge at Padadhari. Along with the election petition, Exh.5 application for stay came to be moved. Election Petition No. 1 of 2017 was fixed on 18.01.2017, thereafter, it was adjourned to 20.01.2017. On behalf of respondent No. 1, time was sought and the matter was kept on 21.01.2017. On 21.01.2017 the petitioners sought time to file reply. The petitioners were directed to file reply till 2:30 p.m. on 23.01.2017.

(iii) It is the case of the petitioners that on 23.01.2017 they could not file reply because the documents were not available with them. On the same day the Civil Judge heard the application Exh.5 and g