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SCA/14309/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14309 of 2010
With
SPECIAL
CIVIL APPLICATION No. 14311 of 2010
=========================================================
MANIBEN
HAIBHAI ZALA - Petitioner
Versus
STATE
ELECTION COMMISSION & 3 - Respondents
=========================================================
Appearance :
MR
ND NANAVATI WITH MR NIRAJ BUCH FOR NANAVATY ADVOCATES for
Petitioner
NOTICE SERVED BY DS for Respondent: 1,
MR NIRAL R
MEHTA for Respondent: 1,
MS NAIR AGP for Respondent: 2,
MR PS
CHAMPANERI for Respondent : 3,
MR ASHISH M DAGLI for Respondent:
3,
MS.KHUSHBOO V MALKAN for Respondent :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 01/12/2010
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
petitioners by these petition challenge the elections of Members of
Taluka Panchayat of Veraval Nagar Panchayat as well as Member of the
District Panchayat i.e. Junagadh District Panchayat and it is the
case of the petitioner that on account of alleged mistake in
connecting BU (Bullet Unit) and CU (Control Unit), the result of the
election has been materially affected.
We
have heard Mr. Nanavati, learned counsel appearing for the
petitioner in both the petitions and Mr.Niral Mehta, learned
advocate appearing for respondent no. 1, Ms. Nair, learned AGP for
respondent No.2, Mr. Champaneri, learned advocate appearing for
respondent No. 3 and Mr. Kazi for Ms. Malkan, learned advocate
appearing for respondent No.4.
It
was contended by learned counsel appearing for the petitioner that
as per section 31(4) of the Gujarat Panchayat Act (hereinafter
referred to as ‘the Act’ for short) read with explanation, even if
it is an error, which has materially affected the result, the
requirement is that such error has to be under this Act or under the
Rules. In the submission of learned counsel for the petitioner, as
per the petitioner, counting of BU and CU may be interpreted ‘may
not fall under the Rules’ and therefore, he submitted as the
position was not clear, the petitioner had the only remedy of
approaching this Court by a petition by Article 226 of the
Constitution of India.
Whereas,
Mr. Soni and Mr. Champaneri, learned counsel appearing for the
contesting respondents, who have been declared elected, contended
that even for such alleged error, the same would fall under Rule 64
part (vii)(A) for counting of the voting recorded in the Electronic
Voting Machine and therefore, it is submitted that such being the
situation, the petitioner has the remedy of approaching the Election
Tribunal as per Section 31 of the Act. It was submitted that as the
said remedy is not exhausted, the present petitions may be not be
entertained under Article 226 of the Constitution.
We
find that counting of voting through Electronic machine is regulated
by the Rules provided under part (viii)(A) of the Gujarat Panchayat
Election Rules, 1994 (hereinafter referred to as ‘the Rules’ for
short), which have come into force with effect from 22.10.2001.
Therefore, any objection for counting of votes would fall as an
error under the Rules. As per explanation of Subsection (4) of
Section 31 of the Act, if any error is under the Rules and it has
materially affected the result of the election, such would not fall
in the exceptional category as provided, as sub-section (4) of
Section 31 of the Act, controlling the powers of the Election
Tribunal to set aside the election. We may also record that the
learned counsel appearing for the elected candidates Mr. Soni and
Mr. Champaneri have also conceded to the aspect of jurisdiction to
the Election Tribunal to decide the issue.
At
this stage, Mr. Nanavaty, learned counsel appearing for the
petitioner submitted that in view of the aforesaid, the petitioner
may be permitted to approach the Election Tribunal. However he
submitted that as there was no clarity on the said aspect and the
petition is filed within the prescribed period of limitation as
provided under Section 31 of the Act, the suitable observation may
be made. Whereas, Mr. Champaneri as well as Mr. Soni appearing for
the elected candidates opposed said prayer by contending that the
jurisdiction of the Election Tribunal for entertainment of the
petition on the ground of limitation may not be controlled by this
court since by a misconception, petition has been preferred before
this Court and if the petition was on misconception, the observation
may not be made by this Court.
We
find that it is not a matter where the clarity did exist as sought
to be canvassed on the aspect of interpretation of the explanation
to sub-section (4) of Section 31 of the Act. Be as it may. If the
petitioner is to approach before the Election Tribunal and when the
matter was pending before this Court, the aspect of limitation may
be considered by the learned Judge, who has power to decide the
election petition. We leave the matter at that stage without
observing further.
Hence,
subject to aforesaid observations, the petition is disposed of as
withdrawn. Notice discharged. No order as to costs.
(JAYANT
PATEL, J.)
(S.R.BRAHMBHATT,
J)
pallav
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