Gujarat High Court
Pratik Kanubhai Mistry vs Gujarat University on 26 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4614/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4614 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PRATIK KANUBHAI MISTRY
Versus
GUJARAT UNIVERSITY
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Appearance:
SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 2
MRS VD NANAVATI(1206) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/02/2020
ORAL JUDGMENT
1. The petitioner who is student of Masters of Commerce in the Page 1 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT Neeldeep College of Commerce affiliated with the Gujarat University has come forth to this Court by filing the present petition under Article 226 of the Constitution of India, for the prayers which read as under:
"(A) Your Lordship may be pleased to admit and allow the petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent No. 1 to modify the voter list and delete those names which are not filled in/submitted as per the instructions of the Gujarat University as prescribed in the form/format issued by the University;"
2. The facts of the present case in a nutshell are as under:
2.1. The petitioner is a student of the Gujarat University. An election program for 10 representatives in the constituency of Student Senate and 14 representatives for the Board of Students Welfare for the year 20192020 was declared on 29.01.2020. The said elections were in accordance with the Statute 14D of the Gujarat University Act (for short "the Act"). The petitioner places his case on the communication dated 20.01.2020 issued by the Gujarat University to the various colleges affiliated with it, by which instructions were passed on to such colleges that for the purpose of including the names of the students in the voters list, the identity card of the Voter i.e. identity card issued by the College and, or the Election Card used and issued by the Election Commission be considered as a valid proof of the voters' address.Page 2 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020
C/SCA/4614/2020 JUDGMENT 2.2. The case of the petitioner is that when the voters list was so prepared by various colleges, several colleges created fake college identity cards of the students, of which even the students were unaware of. It is case of the petitioner that the voters list so prepared contained fake addresses of the voters. As per the statute 14D(4)(c) of the Act the petitioner lodged his objections on the closing date for filing of objections i.e. on 07.02.2020.
2.3. In a nutshell, the objections were that the voters whose names were found on the list were not genuine inasmuch as their addresses so figuring on the list was fake.
3. Learned Advocate Mr. Sudhanshu Jha appearing for the petitioner has taken the Court through the voters list annexed to the petition as AnnexureG and pointed out several instances wherein various colleges have submitted the address and names as per the enrollment in the University's record. For instance Mr. Jha pointed out an instance wherein the College at Serial No. 418 has against the name of the voters at Serial Nos. 16,17 and 18 mentioned the probable address as 'Ognaj, Ahmedabad' only. Mr. Jha has also invited the attention of the Court to the format of addresses that needed to be filled up by the voter (Page No. 19) and submitted that the details so required were missing. It was therefore contended that due to such large scale irregularities of bogus voters found in the names on the voters list, the election was fraught with irregularities and was biased and it was difficult for the petitioner to contest such elections.
4. Learned Advocate Mr. Jha has further submitted that when the objections were lodged by the petitioner, the committee constituted by the Vice Chancellor also prima facie opined (at page 33 ) deletion of Page 3 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT such names. However, in accordance with the provision of the Statute 14D, the objections have not been decided by the Vice Chancellor and therefore the prayer of the petitioner to delete the names from the voters list and to modify the list accordingly.
5. Learned Senior Advocate Mr. S. N. Shelat with Mr. V.D. Nanavati is appearing for the respondent No. 1Gujarat University.
Learned Senior Advocate Mr. Shelat would invite the attention of this Court to the prayer of the petitioner and submitted that the prayers so made for writ under Article 226 of the Constitution of India will not be maintainable. Further inviting the attention of the Court to the pleadings made in paragraphs 3.10 to 3.12, he submitted that at best it was a case where the petitioner lodged allegations of bogus and frivolous voters which is a disputed question of fact and certainly would not lie in this Court especially when a special mechanism under the Act was available after the elections were held.
6. Learned Senior Advocate Mr. Shelat inviting the attention of the Court to the election program has submitted that the nominations have been invited and filled in, and the petitioner is nominated and his name appears in the list of nominated candidates published on 25.02.2020 and the election is now scheduled to be held on 08.03.2020. He submitted that when the election process has started this Court should not exercise its jurisdiction under Article 226 of the Constitution of India. Mr. Shelat has invited the attention of this Court to the Affidavitinreply filed by the InCharge Registrar Dr. Piyushkumar M. Patel. Drawing support to his submissions Mr. Shelat has relied on the decision of the Supreme Court in case of Gujarat University versus Shri N.U. Rajguru and others reported in AIR (1988) Supreme Court 66. Pressing into service paragraph No. 7 of the decision of the Supreme Court, Mr. Shelat would submit Page 4 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT that the mechanism under Section 58 of the Act by way of filing of the Election Petition can be resorted to by the petitioner. Reliance was also placed on the decision of the Division Bench of this Court in case of Bipinchandra Purushottandas Patel versus Sardar Patel University in Special Civil Application No. 18564 of 2011 and in case of Jasvantbhai Haribhai Thakkar versus Chancellor, Gujarat University and others in Special Civil Application No. 22378 of 2005.
7. Learned Advocate Mr. Jha appearing for the petitioner, would contend that looking to the apparent observations made from the voters' list which made it clear that the names that appear in such list were fake, it was difficult for the petitioner to identify the voter and contest the election. The election petition was not an efficacious remedy when fake names on the record are suggested and the registration of the voters contained mistakes. Reliance was also placed on the decision of Chandrakant Manibhai Patel versus State of Gujarat and other in Special Civil Application No. 9965 of 2013 and on the decision of the Supreme Court in case of Krishnamoorthy versus Sivakumar and Ors. reported in Civil Appeal No. 1478 of 2015, SLP (C) No. 14918 of 2009. He submitted that the petitioner ought not to be relegated to an alternative remedy of filing an election petition.
8. Considering the submissions made by the learned Advocates appearing for the respective parties, the case of the petitioner as is evident from the pleadings in the petition and in context of the prayers so made is that it is his case that the list of voters that has been furnished contains bogus voters. The same is not in consonance with the instructions of the University in its circular dated 20.01.2020. It is in this context that it is worthwhile to reproduce the pleadings of the Page 5 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT petitioner in paragraph nos. 3.10 and 3.11 which read as under:
"3.10. The petitioner say and submits that as the petitioner is contesting for students representation to the post of Board of Students Welfare and therefore, the voters of all the faculties namely; Law, Science, Education, medical, Dental, Arts, and commerce are common, and it appears that in most of the faculties 30% or more than that votes are bogus and frivolous as the same is actuated by malice with a view hinder the free and fair election. That some colleges have not only filled in the frivolous voters, but has acted in a malafide manner to assure the victory of candidates of their choice, and therefore they have sent more voters from their college, though their intake capacity is much less. That the colleges have violated the Statute 14 just to affect the free and fair election.
3.11. The colleges like Motilal Nehru Law College Ahmedabad, Navgujarat College Gandhinagar, President College, Jeel Goswami College of Science, National College of Commerce, Shri GN Zala and N.M. Zala Commerce College and the list is unending. It has become very difficult for the petitioner to even contest this election in a biased and full of fraud practices and therefore the petitioner is before this Hon'ble Court. It is submitted that the petitioner has only produced few such examples, but there are frivolous voters in large amount which is actuated by malice and with a view to influence the election and therefore the interference of the Hon'ble Court is required."
9. From the election program which has been published what is evident is that the nominations have been made and the petitioner is a nominated candidate and the voting for the purposes of the election to the Board of Students Welfare is scheduled to be held on 08.03.2020. Reliance placed on the decision of this Court in the case of Chandrakant Manibhai Patel (supra) by learned Advocate Mr. Sudhanshu Jha, if perused, is in the context of the voters list published for the purpose of election and the mistake committed. The question therein was whether the licenses were granted to the voters whose names figured in the list with a view to inflate the list and create an artificial majority. It was in this context that the Court Page 6 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT opined that the sanctity of the election could not be tinkered with and therefore the writ jurisdiction under Article 226 of the Constitution of India was invoked, exercised and accepted. From the pleadings in the petition together with the annexures on which Mr. Jha has extensively relied upon, what is suggested through the submissions is that the addresses of the voters shown in the voters' list are fake and that they are bogus and therefore the list of voters be modified or be deleted. The petitioner expresses his handicap to contest such an election on the basis of said voters list.
10. The decision of the Supreme Court in case of Gujarat University (supra) would be binding on this Court in the context of the controversies i.e. whether this Court should entertain a petition under Article 226 of the Constitution of India. Considering the provisions of Section 58 of the Act it will be apt to reproduce the observations made by the Supreme Court in the case of Gujarat University (supra), which read as under:
"5. Under the aforesaid provision if a dispute arises with regard to the constitution of any of the authorities of the University, it should be referred to the State Government for determining the same. It firstly provides that where any question arises as to the interpretation of any provision of the Act, or of any Statute, ordinance, Regulation or Rules, it may be referred to the State Government. Secondly, it lays down that if a question arises whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University, it shall be referred to the State Government. Section 58(2)(a) provides that the dispute relating to interpretation of any provision of the Act or Statute ordinance, Regulation or Rules may be referred to the Government while Clause (b) of Subsection 2 of Section 58 contains a mandatory provision that if the dispute relates to the question whether a person has been duly elected or appointed to any authority of the University such a dispute shall be referred to the State Government. There is no option or discretion. If such a dispute arises, it has to be referred to the State Government for determining the same. If 20 members of Page 7 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT the Court raise a dispute relating to a matter specified in Clause (1) or Clause II of Section 58 it shall be referred to the State Government and thereupon the State government shall after making such enquiry as it may deem fit, decide the question.
The legislative intent is manifestly clear that any dispute relating to the matters covered by Section 58 should be referred to the State Government for its decision and such decision shall be final. By enacting Section 58, the legislature has constituted a forum for the determination of disputes in respect of matters specified therein. Since the "Court" is an authority of the University as declared by Section 15 of the Act, Section 58 provides an effective remedy for challenging the election of a member to the Court of the University. Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with Section 58. In the instant case, the respondents could have availed the alternative remedy available to them before the State Government under Section 58 of the Act. Instead they challenged the validity of the election before the High Court under Article 226 of the Constitution. The respondents had challenged the validity of Statute 10(3) in their writ petition but they did not press that question before the High Court as stated in the judgment under appeal.
6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court.
7. We do not consider it necessary to burden the judgment by referring to decisions of this Court laying down the principle Page 8 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities a petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution. We would however refer to a decision of this Court in K.K. Shrivastava etc. v. Bhupendra Kumar Jain and other, AIR 1977 SC 1703 where a defeated candidate at the election to the membership of the Bar Council of Madhya Pradesh moved the High Court under Article 226 of the Constitution challenging the validity of the election. The High Court was conscious that equally efficacious remedy was available to the petitioner under the rules but even thereafter the High Court interfered on the ground that since the entire election was challenged an election petition could not be an appropriate remedy and the same could not be considered as an equally efficacious remedy. This Court set aside the High Court's order. Krishna Iyer, J. speaking for the Court observed:
"It is well settled law that while Art. 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument.""
11. Even in the decision of Bipinchandra Purushottandas Patel (supra) in the context of Section 59 of the Sardar Patel University Act, 1955 which was paramateria to that of Section 58 of the Gujarat University Act, this Court did not entertain a petition in exercise of powers under Article 226 of the Constitution of India and left it open for the petitioner to avail a remedy under Section 59. Even in the decision of Jasvantbhai Haribhai Thakkar (supra) considering Page 9 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020 C/SCA/4614/2020 JUDGMENT Section 58, the Division Bench did not entertain a petition to exercise powers under Article 226 of the Constitution of India.
12. In view of the above, the Court therefore considering the decisions of the Supreme Court and in cases of Bipinchandra Purushottandas Patel (supra) and Jasvantbhai Haribhai Thakkar (supra) deems it fit that this Court should not entertain a petition under Article 226 of the Constitution of India, particularly in view of the fact that the election is scheduled to be held on 08.03.2020. In view of the available remedy under Section 58 of the University Act, this petition is not entertained and is accordingly dismissed.
(BIREN VAISHNAV, J) SINDHU NAIR Page 10 of 10 Downloaded on : Sat Feb 29 21:06:16 IST 2020