Gujarat High Court
Mahipalsinh Najbhai Basiya vs State Election Commission on 12 February, 2025
NEUTRAL CITATION
C/SCA/1699/2025 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1699 of 2025
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MAHIPALSINH NAJBHAI BASIYA
Versus
STATE ELECTION COMMISSION & ORS.
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Appearance:
MR YOGESHKUMAR A RATANPARA(7260) for the Petitioner(s) No. 1
AISHVARYA(8018) for the Respondent(s) No. 1
MR G. H VIRK, ADVOCATE with
MS DHARITRI PANCHOLI, AGP with
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 2
MR KAMLESH S KOTAI(6150) for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 12/02/2025
ORAL ORDER
1. This petition is filed seeking to direct respondent No. 2 - Election Officer to reject the nomination form of respondent No. 4 on the ground that the same is in violation of principles of natural justice. Further, prayer in relation to staying of election proceedings is also prayed.
2. Heard learned advocate Mr. Yogeshkumar Ratanpara for the petitioner. Learned advocate submitted that petitioner and respondent No. 4 both, participated in the election for the post of Corporator, of Junagadh Municipal Corporation scheduled in Ward No. 9 reserved for Socially and Educationally Page 1 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined Backward Class (SEBC) candidate. The notification was published by State Election Commission on 21.01.2025. Accordingly, petitioner and respondent No. 4 filled their nomination forms on 01.02.2025, along with necessary documents, including caste certificate. The nomination form filed by respondent No. 4 was for the post reserved for Socially and Educationally Backward Class (SEBC) in Ward No. 9 in Junagadh Municipal Corporation. Learned advocate submitted that the caste certificate produced by respondent No. 4 dated 28.01.2025, of he being SEBC candidate ought not to have been considered, since respondent No. 4 is having caste certificate dated 13.07.2017, issued by competent authority, where he has been referred as Scheduled Tribe (ST) candidate. The petitioner filed objection before the Election Officer which came to be rejected vide order dated 03.02.2025, leading to filing of this petition.
2.1 Learned advocate submitted that since respondent No. 4 is having caste certificate dated 13.07.2017 declaring him as a member of Scheduled Tribe (ST) category, the nomination form accepted by taking into consideration the caste certificate dated 28.01.2025 as SEBC candidate being erroneous deserves to be ignored. Learned advocate therefore submitted that the nomination form of respondent No. 4 may be directed to be reject.
Page 2 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined 2.2 Learned advocate further submitted that at the time of scrutiny of nomination forms, this aspect was brought to notice of Election Officer by raising objection by the petitioner, despite that the same being ignored the petition deserves consideration. Further, the order dated 03.02.2025, does not record objections raised by the petitioner and therefore, also, the petition deserves consideration.
3. In support of his submissions, learned advocate for the petitioner relied upon decision of this Court dated 23.12.2016 in the case of Kalubhai Chhitabhai Patel vs Gujarat State Election Commission and Anr in Special Civil Application No. 21023 of 2016 to submit that the petition is maintainable because the election officer has arbitrarily exercised his powers in not rejecting the nomination form of respondent No. 4.
4. Strenuously opposing the petition, learned advocate Ms. Aishwarya for respondent No. 1 - Election Commission submitted that as per Article 243ZG of Constitution of India r/ w Section 14 and 16 of the Gujarat Proventil Municipal Corporation Act, 194 9 (GPMC Act) for the grievances in relation to filing of nomination form there is a provision of Election Petition which the petitioner is required to avail. Since the statutory remedy of Election Petition is available Page 3 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined under the GPMC Act, present petition may not be entertained.
4.1 Learned advocate by placing reliance on provisions of Section 2(29) of the GPMC Act, 1949, submitted that wide powers have been assigned in an Election Petition to a Judge and therefore also this petition may not be entertained. Further, in the present case summary inquiry after taking cognizance of the objections raised by the petitioner has been done by the Returning Officer. The order dated 03.02.2025 records cognizance of objections by the petitioner as also the summary inquiry done by the Returning Officer. Moreover, the Election Officer has noted that no document is available to justify that the caste certificate dated 28.01.2025 is not in existence. Also, Rule 7 of the Bombay Provincial Municipal Corporation (Conduct of Elections) Rules, 1994 refers to scrutiny of nomination papers, wherein sub rule 8(ii) provides that in case of dispute regarding the status of candidate being considered eligible to be elected against a reserved seat arises at the time of scrutiny of nomination, the Returning Officer may ask the candidate to produce the original of certificate referred to above and/or any other document in support of the claim of the candidate. As per Rule 8 of Rule 5, 1994, the summary scrutiny is required to be done and this having been done in the present case there is no error in the order dated 03.05.2025 and hence the present petition is not required to be Page 4 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined entertained.
5. Learned advocate Mr. G. H. Virk for respondent No. 2 supported the submission made by learned advocate for respondent No. 1 and raised the preliminary objection with regard to maintainability of present petition in view of there being alternative efficacious remedy of Election Petition available under the provisions of the Gujarat Provincial Municipal Corporation Act, 1949 (for short 'the GPMC Act, 1949'). Inviting attention of this Court to the provisions of Article 243ZG of the Constitution of India read with Section 14 and 16 as also Section 16(1)(2)R(3) of the GPMC Act, 1949 learned advocate submitted that the petition does not require any consideration. It is further submitted that summary scrutiny in this case has been done by the Returning Officer as per Rule (8) of the Gujarat Provincial Municipal Corporation (Conduct of Elections) Rules, 1999. After summary scrutiny the Returning Officer has considered the certificate dated 28.01.2025 and rejected the objections of the petitioners. Learned advocate furthers submitted that for any further grievance there is a provision of filing Election Petition and therefore this petition may not be entertained at this stage.
5.1 Learned advocate for respondent No. 2 with regard to maintainability of present petition relied upon following Page 5 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined decisions: -
In the case of Shaji K. Joseph vs. V. Viswanath and Ors reported in (2016) 4 SCC 429;
In the case of Mohmed Javid Abdulmutlib Pirzada vs. State of Gujarat reported in 2023 (0) AIJEL-HC 244962;
In the case of Dilipbhai Chhotubhai Vasava vs. State of Gujarat decided on 25.02.2021 in Special Civil Application No. 3922 of 2021;
In the case of Mhammedsoyab Abdulrahim Dal vs. State Election Commission, Gujarat State and Anr decided on 22.01.2025 in Special Civil Application No. 16727 of 2024.
6. Considered the submissions. From the documents on record, it is noticed that in the order dated 03.02.2024 the returning officer while carrying out summary scrutiny of nomination form has placed reliance on the caste certificate dated 28.01.2025. The order also records the cognizance of the objection taken by the petitioner as also the certificate produced by petitioner as objector dated 13.07.2017. Therefore, in this case summary scrutiny done by the Returning Officer is Page 6 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined evident. However, in the decision of Hon'ble Supreme Court in the case of Shaji K. Joseph [supra] it is held as under:-
"3. The Learned Singe Judge of the High Court vide judgment dated 23rd May, 2011 allowed Respondent no.1's Writ Petition by setting aside the order passed by the Returning Officer, rejecting nomination in respect of candidature of Respondent no.1 and directed the Returning Officer to conduct the election afresh after including name of Respondent no.1 and to declare the result on the basis of such election to be conducted afresh from the stage after submission of the nominations.
4. Being aggrieved by the aforestated judgment delivered in the writ petition, the present appellant preferred Writ Appeal No.806 of 2011 assailing the validity and correctness of the said judgment rendered by the Learned Single Judge of the High Court. The Division Bench of the High Court dismissed the Writ Appeal by its judgment dated 18th July, 2011 and therefore, the appellant has approached this Court by way of this appeal.
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15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is Page 7 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election."
7. In one more decision in the case of Mohmed Javid Abdulmutlib Pirzada [supra] in relation to alternative remedy has held as under:-
"[10] We have even independently examined the said issue relating to alternative and efficacious remedy available and find that conjoint effect of the relevant rules would clearly indicate that possible view of the learned Single Judge is not erroneous rather said view is well supported by the decision delivered by full bench of this Court in the case of Daheda Group Seva Page 8 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined Sahakari Mandli Limited (supra). We deem it proper to extract and quote hereunder the relevant paragraphs from the said decision:-
"4. In view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non inclusion of the names in the voters' list cannot be made a ground in an election petition, while the other view is that preparation of the voters' list which includes deletion of the names in the voters' list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions:
I. Whether a person whose name is not included in the voters' list can avail provisions of rule 28 of the rules by filing election petition ?
II. Whether the remedy under rule 28 can be termed to be efficacious remedy ?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the voters' list ?
25. The Division Bench of this Court in a decision rendered in the case of Kanubhai Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 (supra), rightly held that the decision rendered by the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, Page 9 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram vs State of Punjab (AIR 1959 SC 519), observed that - "where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger bench".
26. We may make it clear that by interpreting Rule 6 and 28 of the Rules, we are not enlarging the scope of the legislation or intention of the legislator nor recasting, rewriting or reframing the legislation. We are conscious of the fact that the Court has no power to legislate. Therefore, the decision rendered by the Hon'ble Apex Court in the case of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel and Ors., reported in AIR 1998 SC 1429 cited by Mr B S Patel will be of no assistance to him.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases Page 10 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are Page 11 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
8. In the decision in Special Civil Application No. 3922 of 2021 dated 25.02.2021, this Court has held as under:-
"2. In the light of the provisions contained in Article 243O(b) of the Constitution of India, which provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State, we do not consider that it is permissible to interfere with the acceptance or rejection of the nomination papers for the ensuing municipalities election/corporation election. The election process commences from the issuance of the calender of events till the results of the election are declared. As the acceptance or rejection of the nomination is one of the stages in the process of election, the validity of it can only be challenged in election petition and not under Article 226 of the Constitution of India. There was a controversy earlier to the introduction of Part IX and Article 243O of the Constitution, as to whether the principles underlying Article 329 of the Constitution could be extended to the matters relating to the elections to the various local bodies. But, Page 12 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined ultimately now the controversy is put an end to by the introduction of the Article 243O( b) of the Constitution of India. Hence, we are of the view that the jurisdiction under Article 226 of the Constitution of India cannot be exercised as against the order of acceptance or rejection of the nomination paper or in respect of any of the stages of the election process.
3 In taking the aforesaid view, we are fortified by an order passed by a coordinate bench of this Court in the case of Parshottam Dayabhai Yadav Vs. Election Commission of India & Anrs.; Special Civil Application No.16166 of 2012; decided on 4th December, 2012. We quote the relevant observations:-
"2. The petitioner wanted to contest the election from legislative constituency No.79 - Jamnagar South. His nomination paper has been rejected and he has challenged the rejection of his nomination papers.
3. Mr.Preman Rachh, learned advocate for the petitioner has placed reliance on the Apex Court decision - Pothula Rama Rao Vs.Pendyala Venkata Krishna Rao & Ors. Reported in AIR 2007 SC 2924. On the strength of this judgment, he has urged that his nomination paper has wrongly been rejected as it was not signed by 10 proposers.
4. On the other hand, Mr.Percy Kavina, learned senior counsel assisted by Mr.Biren Vaishnav, learned advocate for the respondent No.1 has urged that the remedy is not available to the petitioner, and against the rejection of nomination paper, the remedy available to the petitioner is filing a election petition. He has placed reliance on an Apex Court decision -Page 13 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025
NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined Manda Jaganath Vs. K.S.Rathnam & Ors. Reported in AIR 2004 SC 3600.
5. We are in agreement with the view taken by the Hon'ble Apex Court in Manda Jaganath's case (supra). The proper remedy available to the petitioner is to challenge his rejection of nomination paper after the elections are over by filing election petition. This petition, therefore, is dismissed on the ground of alternative remedy of election petition.""
9. Moreover, this Court in vide its judgment dated 22.01.2025 passed in Special Civil Application No. 16727 of 2024 in a challenge made in relation to election has held as under:-
"12. Moreover, in the decision relied upon by the petitioner of this Court in Special Civil Application No.2348 of 2024, it is held that this Court is well aware that in normal circumstances, once election program is declared, the court cannot interfere with such election process by exercising the powers under Articles 226 and 227 of the Constitution of India. However, it is not a complete bar. Applying the same principle, this Court is conscious of the fact that there is no complete bar in entertaining such petition. However, considering the fact that there is remedy available to the petitioner and in absence of any breach of fundamental rights and in breach of any mandatory rules, this court deems it appropriate not to entertain the present petition only on the ground that the election process has begun. In view of consideration of first issue, which is being raised by learned Assistant Government Pleader for respondent No.3- State, Page 14 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined this Court deems it appropriate not to enter into the merits in relation to the allocation of seats. At this stage, if the prayers prayed for by the petitioner is accepted, the same would stall the entire election process."
10. Moreover, it cannot be ignored that Section 16 of the GPMC Act, 1949 provides for filing of Election Petition. Further as per Rule 7(8) of the Bombay Provincial Municipal Corporation (Conduct of Elections) Rules, 1994, the summary inquiry is required to be done by the Returning Officer which reads as under:-
"8. Scrutiny of nomination paper:- On the date and time fixed for scrutiny of nomination papers under rule 5, the returning officer shall examine the nomination papers and decide all objections which may be made to any nomination and may, either on such objections or on his own motion, after such summary enquiry, if any, as he thinks necessary, declare invalid any nomination on any of the following grounds:-
(a) the candidate is not enrolled in the municipal electoral roll as a voter of the city;
(b) the candidate has not made or caused to be made the deposit referred to in rule 17;
(c) the candidate has not attained the minimum age required for being elected a councillor;
(d) the candidate is disqualified under any provisions of the Act from being a councillor;
(e) the proposer or seconder has not been enrolled as a voter of the ward for which, the Page 15 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025 NEUTRAL CITATION C/SCA/1699/2025 ORDER DATED: 12/02/2025 undefined nomination has been filed;
(f) the Signature of the candidate or the proposer or the seconder on the nomination paper is not genuine; or
(g) the signature of the proposer or the seconder on the nomination paper has been also affixed on another nomination paper which has been delivered to the returning officer prior to this nomination paper."
11. The summary Inquiry having been done as per Rule 8 of the and the same being done in the present case. Therefore, this Court do not find any error in the order dated 03.05.2025 and therefore the present petition is rejected.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 16 of 16 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:33:53 IST 2025