The Election Tribunal's order for recounting was justified due to the Election Officer's failure to follow statutory procedures, affecting the election result.

JUDGMENT :

UMESH A. TRIVEDI, J.

1. This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner, challenging the order passed by Principal Civil Judge (Junior Division), Lakhni dated 02.03.2022 below Exhibit- 01 in Election Petition No. 2 of 2021, whereby Election Petition filed by the respondent No. 1 herein came to be allowed so far as recounting of votes is concerned, directing respondent No. 3 – Election Officer, Kuda Gram Panchayat, Taluka Development Office, Taluka: Lakhni, District: Banaskantha, to submit entire record with ballot papers pertaining to election of Sarpanch of Kuda Gram Panchayat within 7 days thereof.

2. After passing of the order, the petitioner herein, vide applicatin Exhibit-58 requested the Court to stay the impugned order till appeal period as he wanted to prefer appeal against that order. The learned Judge vide order of 02.03.2022 passed below Exhibit-58 stayed the same so far as it relates to recounting of votes. However, Court did not stay the order directing respondent No. 3 – Election Officer to produce the record pertaining to the election of Sarpanch along with ballot papers before the Court. Therefore, recounting as per the order passed by the Court is yet not conducted because that order passed below Exhibit-58 came to be extended till today.

2.1 As coming out from the record, respondent No. 1 herein filed the aforesaid Election Petition before the competent Court under Section 31 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Act, 1993”).

2.2 As coming out from the Election Petition, seat of Sarpanch was of general candidate and there was no reservation on the said seat of any of the sort. For the post of Sarpanch, respondent No. 1 herein and the petitioner along with one Dunkhaji Bhagaji Silana and one Becharaji Raimalji Rabari were contesting the election of Kuda Gram Panchayat.

2.3 As disclosed to the Court, respondent No. 2 has expired on 20.01.2024, and therefore, vide order dated 18.03.2024, his name came to be deleted from the array of the respondents.

2.4 Voting to the post of Sarpanch was held on 19.12.2021 and counting of the votes was scheduled to be undertaken on 21.12.2021. Respondent No. 3 herein was appointed as Election Officer for conducting the election to the post of Sarpanch of Kuda Gram Panchayat.

2.5 As averred in the Election Petition, on the day of counting, when that exercise was undertaken, respondent No. 1 herein was present at the place. The counting of votes was undertaken under the direct supervision of respondent No. 3 herein. Before publishing final result of the election by the Election Officer, it was informed that out of the ballot boxes, there were 2050 total valid votes and 184 votes were held to be invalid, totalling 2234 votes, whereas 10 votes were casted to “NOTA”.

2.6 As further averred in the application by the respondent No. 1 herein, out of the invalid declared votes, nearly 60 votes were bearing thumb impression over the ballot papers, whereas 40 ballot papers were bearing 'Arrow' mark, as it is further averred that those votes, though declared to be invalid, were in favor of the respondent No. 1 herein. It were not declared valid as it did not bear the permitted mark over the ballot paper of a ‘cross’.

2.7 It is further averred by the respondent No. 1 herein that, on the date of voting, near the polling booth, one rubber stamp was there along with a stamp- pad, which led voters of rural area to use the stamp-pad for the purpose of putting their thumb impression over the ballot papers and they put their thumb impression on the ballot paper at Serial No. 4 of the respondent No. 1 herein, containing his name and his symbol of a ‘Pot’ and through oversight, they did not utilize stamp putting 'Cross' against the name of respondent No. 1 herein in the ballot paper. As such, as averred in the application, ballot papers containing sign of thumb impression reflected clear intention to cast vote in favor o