Gujarat High Court
Manishaben Harishbhai Patel vs State Election Commission on 13 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18894/2021 ORDER DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18894 of 2021
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MANISHABEN HARISHBHAI PATEL
Versus
STATE ELECTION COMMISSION
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Appearance:
MR DHARMESH C GURJAR(5170) for the Petitioner(s) No. 1
REKHABEN C GURJAR(7360) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
Ms. Jyoti Bhatt, Asst. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Heard Mr. Dharmesh Gurjar, learned advocate for the petitioner and Ms. Jyoti Bhatt, learned Assistant Government Pleader for the respondent nos. 2 and 4 on advance copy.
2.0. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:
"A. Your Lordships may be pleased to admit and allow this Special Civil Application.
B. Your Lordships may be pleased to issue an appropriate writ, order or direction, direction the respondents Authorities to consider and / or accept the form for the post of Sarpanch of the present petition for Kharsad Gram Panchayat Election, Tal:
Jalalpore, Dist. Navsari;
C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay Page 1 of 4 Downloaded on : Wed Jan 12 09:38:45 IST 2022 C/SCA/18894/2021 ORDER DATED: 13/12/2021 the upcoming election held on 19.12.2021 for Kharsad Gram Panchayat, Tal: Jalolpor, Dist. Navsari in the larger interest of justice."
3.0. It is the case of the petitioner that her form for the post of Sarpanch election for Kharsad Gram Panchayat has been wrongly rejected by the Election Officer. Mr. Gurjar further contended that the petitioner is sitting Sarpanch and was elected in the last election held in the year 2018 in a by poll.
4.0. The contentions raised in this petition are mainly on the aspect of rejection of nomination form. Though reasons for political mandate is alleged, the impugned order dated 6.12.2021 indicates that the same orders are passed under Section 30 of the Panchayat Act. Even otherwise the election programme was notified on 22.11.2021 and as per the said programme the voting is now scheduled on 19.12.2021.
5.0. The Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit vs. Gujarat State Election Commission reported in 2021(2) GLH 281, following the judgment of the Hon'ble Supreme Court in the case of Anugrah Narain Singh and Another vs. State of UP and Ors reported in 1996(6) SCC 303, has observed thus:
"75. Our aforesaid discussion may be summarised as under :
(1) Article 243-O of the Constitution of India does not per se bar judicial review, which is part of the basic structure of the Constitution, although such jurisdiction should not ordinarily be exercised. There is a difference between 'power of judicial review' and 'judicial power'. The 'power of judicial review' is specially conferred on Page 2 of 4 Downloaded on : Wed Jan 12 09:38:45 IST 2022 C/SCA/18894/2021 ORDER DATED: 13/12/2021 the Constitutional Courts, i.e. the High Courts and the Supreme Court, under Articles 226 and 32 of the Constitution, respectively.
(2) It is settled principle that where there is an effective alternative remedy under the statute, the High Court should not exercise its jurisdiction as a self-imposed restriction. In electoral matters, the High Court observes self- impose limitations and declines to interfere with the election process when once the election notification is issued. But, where the constitutional validity of an Act or a Rule or provision of an Act affecting the election is challenged, or where an error in exercising such jurisdiction or malafides or non-compliance of rules of natural justice is established, the High Court has got ample power to render justice by exercising the power of judicial review conferred on it under Article 226 of the Constitution of India.
(3) The bar of interference by 'courts' in electoral matters should be understood as the bar against the ordinary courts and not against the Constitutional Courts, and it cannot be said that the Parliament intended to take away the power of judicial review of the Constitutional Courts by incorporating Article 243-O of the Constitution. If Article 243-O of the Constitution has to be construed so as to bar the jurisdiction of the Constitutional Courts, i.e. the High Courts and the Supreme Court, the same will be against the basic structure or the basic feature of the Constitution, and accordingly, it is void. (4) The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest an election for an office in Panchayat may be said to be a constitutional right - a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. The State which is vested with the power to implement the constitutional mandate of reservation and rotation and has put in place a legislative and executive measure to implement the mandate cannot be found to have objected judicial review so as to interfere the mandate under law and to ensure that the Page 3 of 4 Downloaded on : Wed Jan 12 09:38:45 IST 2022 C/SCA/18894/2021 ORDER DATED: 13/12/2021 elections are not only conducted within the time prescribed but also in the manner as mandated under law.
(5) The High Court should not intervene even when the elections are imminent. In other words, the election is well underway."
6.0. As stated above, as the election is well under way and as there is alternative remedy available to the petitioner, we deem it fit not to exercise our jurisdiction under Article 226 of the Constitution of India. No case for interference is made out and it is not possible for this Court to grant any relief to the petitioner at this stage. Present petition fails and is hereby dismissed.
sd/-
(R.M.CHHAYA,J) sd/-
(MAUNA M. BHATT,J) KAUSHIK J. RATHOD Page 4 of 4 Downloaded on : Wed Jan 12 09:38:45 IST 2022