Merely Stating EVM Was Defective Would Not Invalidate Election Without Proof Of Material Impact On Outcome: Bombay High Court

A division bench of Justice AS Chandurkar and Justice Vrushali V. Joshi sitting at Nagpur refused to quash election of a Sarpanch who won by one vote in a plea challenging the election on the ground that the EVM recorded one vote less than the number of votes cast.

“It is one thing to attribute defeat in the election to a fault in the Electronic Voting Machine and it is another thing to contend that the result of the election was materially affected resulting in loss in the election…unless evidence is recorded and witnesses are examined who could vouch the fact that in view of the defect in the Electronic Voting Machine the result of the election was materially affected, it would not be possible to record any conclusive finding in this regard. Merely stating that there was a defect in the Electronic Voting Machine which also would be require to be proved would not be sufficient to conclude that the result of the election was vitiated on this count”, the court held.

The court dismissed a writ petition challenging the election results for the post of Sarpanch at Gram Panchayat Sheri (Budruk) in Tahsil Telhara, District Akola. The post was reserved for Ladies (General Category) and had only two contestants, the petitioner Meerabai Chhatare and the second respondent Nita Khandalkar. The village has three wards with 461, 357, and 440 voters respectively.

During the election on December 18, 2022, an alleged defect in the Electronic Voting Machine was reported when the 235^th voter in Ward No.1 attempted to cast vote. Consequently, the machine was replaced, and the voting process resumed. However, when the votes were counted on December 20, 2022, it was discovered that while 1019 voters had cast their votes, only 1018 votes were counted. Further, in Ward No.1, though 385 votes were recorded as cast, only 384 votes were counted. Khandalkar was declared the winner, securing 508 votes against Chhatare’s 507, with three voters not choosing either candidate.

The petitioner objected to the election results before the Returning Officer, raising concerns about the discrepancies between the votes polled and counted. The votes were recounted, after which Khandalkar was declared the Sarpanch. Thus, the petitioner filed the present writ petition challenging the election.

Advocate OY Kashid for Khandalkar objected to the maintainability of the writ petition, asserting that the petitioner should have availed the statutory remedy provided under Section 15 of the Maharashtra Village Panchayats Act, 1959 to challenge the election, and approached the civil court.

Advocate SD Chopde for the petitioner Chhatare argued that the defect in the Electronic Voting Machine could not be raised as grounds for challenging the election results under section 15, thus invoking the jurisdiction under Article 226 of the Constitution.

The court observed that the challenge to an election could be raised under Article 226 of the Constitution in exceptional cases, but clear evidence and findings were required to prove that the election results were materially affected due to the alleged defect.

The court emphasized the need for concrete evidence and witness testimony to establish that the election results were affected due to the EVM malfunction. Without a clear and definitive finding that the petitioner would have won the Sarpanch post had there been no EVM malfunction, the court concluded that no relief could be granted to the petitioner.

“It is thus clear that on the plain statement that there was a difference of one vote in the total number of votes polled and those counted would not be sufficient to unseat the second respondent notwithstanding the fact that she was elected by margin of one vote. Unless the Court is in a position to record an unequivocal finding that but for the defect in the Electronic Voting Machine the petitioner would have been elected to the post of Sarpanch, we do not find that any relief can be granted to the petitioner.”

Thus, the court dismissed the petition, emphasizing the lack of unimpeachable material to support the petitioner’s claim.

Case no. – Writ Petition No. 280/2023

Case Title – Meerabai W/o Dnyaneshwar Chatare v. Returning Officer to the Election