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2022 Supreme(Online)(Guj) 5570
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 7345 of 2022 FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK ==========================================================
1 Whether Reporters of Local Papers may be allowed YES
| 1 | Whether Reporters of Local Papers may be allowed to see the judgment ? | YES |
| 2 | To be referred to the Reporter or not ? | YES |
| 3 | Whether their Lordships wish to see the fair copy of the judgment ? | NO |
| 4 | Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? | NO |
JATNIBEN RAMESHBHAI BURIYA Versus ELECTION OFFICER AND DY. TALUKA DEVELOPMENT OFFICER ==========================================================
Appearance:
MR SUNIL S JOSHI(2925) for the Petitioner(s) No. 1 MR JAPAN V DAVE(5947) for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 1 MS DHVANI TRIPATHI, AGP for the Respondent(s) No. 1 ==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK Date : 08/08/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. Challenging the order of learned 3rd Addition Civil Judge, Dahod in Election Petition No.1 of 2021 this petition has been preferred in the following factual back ground under Articles 226 and 227 of the Constitution of India.
1.1 Respondent No.2 herein filed an Election Petition under Section 31 of the Gujarat Panchayats Act, 2003 (‘the Act’ hereinafter), which was in respect of the general election of the Sarpanch as well as the members of the Gram Panchayat, Kheng, which was held on 19.12.2021. The respondent No.2 is the voter of of Ward No.4, who filled her nomination for the post of Sarpanch of the said panchayat. Along with her, two others also had filled in their nominations for the post of Sarpanch.
1.2 After following the due procedure, election process was started and the counting of votes had been scheduled on 21.12.2021. The total number of votes cast for the post of Sarpanch was 2624, out of which, 161 votes were declared invalid and
3 votes were cast as NOTA.
1.3 At the end of the counting, the respondent No.2 secured 883 votes, whereas the petitioner secured 906 votes and two other contenders namely Jantabne Bhuriya and Sumitraben Parmar secured 228 and 443 votes respectively and 13 votes were rejected/declared invalid. The respondent No.1 declared the petitioner as a successful candidate of having won the Election for the post of Sarpanch of the said Panchayat. Thus, the margin of votes between the winning candidate i.e. the petitioner and the losing candidate the respondent No.2 was 23 votes.
1.4 According to the petitioner, respondent No.1 permitted the husband of the petitioner and her supporters inside the voting booth, as alleged by the respondent No.2 on 21.12.2021. Her agent also objected certain alleged illegality perpetrated by the respondent No.1 in and insisted on recounting of the votes. However, the same was not accepted and they were asked to vacate the booth. Therefore, the next day the respondent No.2 gave a written application i.e. on 22.12.2021 to the Prant Officer, Dahod, wherein it was alleged that the respondent No.1 did not act impartially and the counting of the votes was just to help the petitioner in breach of Rules 60 and 61 of the Gujarat Panchayats Election Rules.
1.5 The Election Petition is the result of the denial of recounting of votes where the prayer is sought to set aside the election result for the post of Sarpanch with the direction to hold the inquiry into the process of counting of votes.
1.6 Along with the Election Petition, the respondent No.2 had filed an application Exhibit 5 praying for the appointment of the Court Commissioner at the interim stage for the purpose of recounting of votes. In the said application, it is prayed by the respondent No.2 to appoint the Court Commissioner and seeking the direction to collect the original votes from the office of the respondent No.1 and deposit the same with the Court in a sealed manner and thereafter to scrutinize the same and recount as per the direction of the Court.
1.7 This had been strongly opposed by the petitioner and after hearing both the sides the Court on 23.03.2020 allowed the application at Exhibit-5 directing the Election Officer-respondent No.1 to produce all votes cast in the Election of Sarpanch of the said Panchayat along with other material, documents and the Court also further directed the parties to the said Election to remain present before the Court on 21.04.2022.
1.8 The present petitioner had moved an application praying for suspension of the order for a period of 30 days for it to challenge before this Court the order of recounting at an interim stage. It is urged that this contravention of the settled principles and hence, present petition with the following prayers:
“13…
(a)Be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction quashing and setting aside the order dated 23.03.2022 passed
