Makbai Gopal Gadhvi vs State Election Commission, Gujarat on 3 January, 2022

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Gujarat High Court

Makbai Gopal Gadhvi vs State Election Commission, Gujarat on 3 January, 2022

Bench: R.M.Chhaya

     C/SCA/20154/2021                          ORDER DATED: 03/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20154 of 2021

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                          MAKBAI GOPAL GADHVI
                                 Versus
                  STATE ELECTION COMMISSION, GUJARAT
==========================================================
Appearance:
MR. AUM M KOTWAL(7320) for the Petitioner(s) No. 1
MS ROOPAL PATEL, AGP for the Respondent(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                           Date : 03/01/2022
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard Mr. Aum Kotwal, learned advocate for the petitioner, Ms. Roopal Patel, learned advocate for respondent no.1 and Ms. Dhwani Tripathi, learned AGP for the respondent no.2.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following main reliefs:-

"(B) Be pleased to issue a writ of certiorari or any other writ in that nature, of certiorari and/or any other appropriate writ/order to quash and set aside the impugned order dated 06.12.2021 passed by the Returning Officer, Megpar (Borichi) being illegal, contrary to the principles of natural justice, perverse and contrary to the position Page 1 of 6 Downloaded on : Wed Jan 12 16:22:44 IST 2022 C/SCA/20154/2021 ORDER DATED: 03/01/2022 of law;

(C) Be pleased to grant an interim stay on implementation and execution in the interest of justice;

(D) Be pleased to issue a writ of mandamus or any other writ in that nature, of mandamus and/or any other appropriate writ/order to direct the respondent authority to include the name of the petitioner in the name of contesting candidates.

(E) Be pleased to issue a writ of mandamus or any other writ in that nature, of mandamus and/or any other appropriate writ/order to direct the respondent authority to cancel the elections and issue fresh elections;"

3. Ms. Dhwani Tripathi, learned AGP for the State Government authorities submitted that the elections had taken place on 19.12.2021 and the election programme was as under:-

Election Programme Sr. Details Date No. 1 Date of declaration of 22.11.2021 election 2 Date of declaration of 29.11.2021 election notices/notifications 3 Last date for filing the 04.12.2021 nomination forms 4 Date for verification of the 06.12.2021 nomination forms 5 Last date for withdrawing the 07.12.2021 nomination forms Page 2 of 6 Downloaded on : Wed Jan 12 16:22:44 IST 2022 C/SCA/20154/2021 ORDER DATED: 03/01/2022 6 Date and time of Election 19.12.2021 (Sunday) (From 07:00 a.m. to 06:00 p.m.) 7 Date of re-election (if 20.12.2021 required) 8 Date of counting the votes 21.12.2021 9 Date of completion of election 24.12.2021 process

4. The Hon'ble Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit v. Gujarat State Election Commission, reported in 2021 (2) GLH 281 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 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 Page 3 of 6 Downloaded on : Wed Jan 12 16:22:44 IST 2022 C/SCA/20154/2021 ORDER DATED: 03/01/2022 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 Page 4 of 6 Downloaded on : Wed Jan 12 16:22:44 IST 2022 C/SCA/20154/2021 ORDER DATED: 03/01/2022 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 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."

5. Considering the ratio laid down by the Apex Court in the case of Anugrah Narain Singh and another vs. State of U.P. and others, reported in (1996) 6 SCC 303 and Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit (supra), we deem it fit not to exercise jurisdiction.

6. As stated above, as the election is over 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. However, it would be open for the petitioner to pursue his grievance before the State Election Commission.

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C/SCA/20154/2021 ORDER DATED: 03/01/2022

7. The petition is, therefore, not entertained and is dismissed accordingly. However, there shall be no order as to costs. Direct service is permitted.

(R.M.CHHAYA,J) (NIRAL R. MEHTA,J) Maulik Page 6 of 6 Downloaded on : Wed Jan 12 16:22:44 IST 2022

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