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Judgment
R.M. Lodha, J.—By this Writ Petition the petitioner is aggrieved by the order passed by Civil Judge, Junior Division, Dound (Election Tribunal) whereby the concerned Tribunal ordered that there shall be scrutiny and recount of the votes before deciding the Election Petition u/s 15 of the Bombay Village Panchayats Act, 1958.
The brief facts to the extent they are relevant and necessary for the disposal of the Writ Petition are:
The election for Village Panchayat of village Boripardhi took place on 19th May 1995. From Ward No. 1 of the said village, 11 candidates contested the election, who are the Petitioner and Respondent Nos. 1 to 10 herein. The Returning Officer ultimately declared the present Petitioner Pandurang Maruti Sodanwar elected. His election has been challenged by Sayyad Faiyaj Badashahbhai Respondent No. 1 herein in Election Petition No. 2 of 1995 before the Civil Judge, Junior Division, Dound. In the Election Petition it has been averred by Sayyad Faiyaj Badashahbhai (hereinafter to be referred as Election Petitioner) that Pandurang Nivruti Sodanwar (hereinafter to be referred as elected candidate) was wrongly declared elected by the Returning Officer due to political pressure and influence though the Election Petitioner received 187 votes while the elected candidate received only 179 votes. The Election Petitioner averred that initially the Returning Officer declared him (Election Petitioner) elected but the elected candidate compelled the Returning Officer to recount the votes by exercising political pressure and influence and upon that the Returning Officer took invalid votes of the elected candidate into consideration and declared him elected. It was thus prayed by the Election Petitioner in the Election Petition that the declaration of the elected candidate to the Village Panchayat be declared illegal and his election be quashed and set aside and the Election Petitioner be declared elected.
It appears that an Application (Ex. 19) was made by the Election Petitioner for scrutiny and recounting of votes. The said application was initially ordered to be considered at the time of hearing of Election Petition but later by the impugned Order dated 4th December, 1996 the Election Tribunal has held that it is necessary that a scrutiny and recounting of votes are completed before deciding the main Application. This Order dated 4th December, 1996 passed by the Election Tribunal is under challenge at the instance of the elected candidate.
Mr. Thorat, the learned Counsel appearing for the Petitioner contended that in the absence of any prayer of scrutiny and recounting of votes in the main Election Petition filed u/s 15 of the Act, 1958, by way of Misc. Application made in the Election Petition, the Election Petitioner could not have prayed for scrutiny and recount of votes and the Election Tribunal committed error of jurisdiction in allowing such Application.
Section 15 of the Act, 1958 provides that the validity of any election of a member of a panchayat can be questioned before the Civil Judge, Junior Division of the area and if there be no Civil Judge, Junior Division then to the Civil Judge, Senior Division within fifteen days after the date of the declaration of the result of the election. For the purpose of the enquiry under Sub-section (1) of Section 15, the said Civil Judge exercises all powers of Civil Court. It would be relevant here to reproduce the relevant portion of Section 15 which reads thus :
(1) If the validity of any election of a member of a panchayat is brought in question by (any candidate at such election or by) any person qualified to vote at the election to which such question refers, (such candidate or person) may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter, in each case, referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.
(2) Any enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside. For the purposes of the said enquiry the said Judge may exercise all the powers of a Civil Court, and his decision shall be conclusive, (if the election is set aside, a date for holding a fresh election shall forthwith be fixed u/s 11.)
(3) All applications received under Sub-section (1) -
(a) in which the validity of the election of members to represent the same ward is in question, shall be heard by the same Judge: and
(b) in which the validity of the election of the same member elected to represent the same ward is in question shall be heard together.
(4) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Judge shall not permit (a) any application to be compromised or withdrawn or (b) any person to alter or amend any pleading unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.
(5)(a) If on holding such enquiry the Judge finds that a candidate has for the purpose of the election committed a corrupt practice within the meaning of Sub-section (6) he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under [Sub-section (2)] and shall set aside the election of such candidate if he has been elected.
(b) If, in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected:
Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown, in giving or obtaining it.
Provided further that after such computation if an equality of votes is found to exist between any candidates and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to total number of valid votes found to have been received in favour of such candidate or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine.
(6) ...
Sub-section (1) of Section 15 provides for a forum for challenging the validity of the election of a member of panchayat within fifteen days after the date of the declaration of the result of the election. Upon application having been made under Sub-section (1) of Section 15 the concerned Election Tribunal is required to hold enquiry. For the purpose of such enquiry, the concerned Tribunal has all the powers of the Civil Court. After holding the enquiry the concerned Tribunal may pass an order confirming of amending the declared result or setting the election aside. The decision of the Election Tribunal has been made final under Sub-section (2). Sub-section (3) provides for the procedure where the applications for challenging the election of a member of panchayat are more than one. According to Sub-section (4) though the Election Tribunal holding the enquiry has all the powers of the Civil Court, yet he cannot permit any application to be compromised or withdrawn nor he shall permit any person to alter or amend any pleading unless he is satisfied that such application for compromise or withdrawal on the application is bona fide and not collusive. The Election Tribunal, if on holding an enquiry, finds that the candidate was guilty of corrupt practice within the meaning of Sub-section (5)(a), he shall declare such candidate disqualified for the purpose of that election and if such candidate has been elected, set aside his election and ordered fresh election. According to Sub-section (5)(b) where the validity of an election is in dispute between two or more candidates and Sub-section (5)(a) does not apply, the concerned Election Tribunal shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate elected who has got the greatest number of valid votes in his favour. The scrutiny and computation of votes is, therefore, within the competence and power of Election Tribunal constituted u/s 15 for determination of election of a panchayat. In the present case in the Election Petition filed by Election Petitioner u/s 15, clear and unambiguous pleading has been made regarding consideration of invalid voles of elected candidates. In para 2 of Election Petition the Election Petitioner has stated that he received the highest 187 votes and was initially declared elected by the Returning Officer but due to political pressure and influence, the recounting was done by the Returning Officer and by counting invalid votes, the elected candidate was declared elected. The Election Petitioner has challenged the election of elected candidate on that ground alone. There is also prayer by him in the Election Petition that since he received more votes than the elected candidate, he may be declared as elected candidate. In the circumstances, even if there is no specific prayer made by the Election Petitioner for scrutiny and recounting of votes in the Election Petition, when subsequently the application was made by the Election Petitioner for a scrutiny and recounting of votes, the Election Tribunal was not powerless in ordering a scrutiny and recounting of votes. I have already observed above that under Sub-section (5)(b) of Section 15 the Election Tribunal possesses the power of scrutiny and recounting of votes. Therefore, the Election Tribunal cannot be said to have committed any error of jurisdiction when it held that in the facts and circumstances the scrutiny and recounting of votes is necessary for disposal of the Election Petition.
The impugned Order, therefore does not call for an interference.
Writ Petition is accordingly dismissed with no Order as to costs.
Rule is discharged.
Certified copy expedited.