Gujarat High Court
Manaji vs District on 2 July, 2012
Author: D.H.Waghela
Bench: D.H.Waghela, G.B.Shah
Gujarat High Court Case Information System
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SCA/5854/2012 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5854 of 2012
=========================================================
MANAJI
MAFAJI THAKOR - Petitioner(s)
Versus
DISTRICT
COLLECTOR & 4 - Respondent(s)
=========================================================
Appearance
:
MR
HR PRAJAPATI for
Petitioner(s) : 1,
MS AMITA SHAH ASSTT GOVERNMENT PLEADER for
Respondent(s) : 1,
RULE SERVED for Respondent(s) : 1 - 2,4 -
5.
RULE UNSERVED for Respondent(s) : 3,
MR JS YADAV for
Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 02/07/2012
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. In the peculiar and special facts of this case, previous order dated 08.05.2012 was made and pursuant thereto, learned counsel Mr.Yadav, appearing for the State Election Commission, has relied upon judgment of the Apex Court in Kurapati Maria Das v.
Dr.Ambedkar Seva Samajan [(2009) 7 SCC 387] to submit that the bar contained in Article 243-ZG (b) of the Constitution is an absolute bar. As against that, learned counsel Mr.Prajapati, appearing for the petitioner, relied upon three-Judge bench decision of the Apex Court in Election Commission of India v. Ashok Kumar [(2000) 8 SCC 216] to submit that High Courts in India are superior courts of record and they have inherent and supplementary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. It is also observed that jurisdiction of courts is carved out of sovereign power of the State. People of free India are sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws thereunder. Access to court, which is an important right vested in every citizen, implies the existence of power of the court to render justice according to law. Where statute is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. The power of judicial review is a part of basic structure of the Constitution, which concept and proposition could not be disputed.
2. As noted in the earlier order dated 08.05.2012, upon affidavit-in-reply by respondent No.3 being filed, it was clear that result of the election was already declared on 17.4.2012 and 15 days having passed thereafter, appropriate alternative remedy under section 31 of the Panchayats Act was no longer available to the petitioner. At the time when order dated 24.4.2012 was made, learned counsel for the State Election Commission had submitted that correct facts were required to be placed on record by executing an affidavit of the officer, annexing copies of the relevant record. Thereafter, learned counsel Mr.Yadav had strongly objected to any direction to check or display the votes recorded in the electronic voting machine, by resorting to the provisions of Article 243-O of the Constitution.
3. In the above facts and circumstances, learned counsel Mr.Yadav fairly conceded that alternative remedy was no longer available to the petitioner, but he must thank himself for choosing the wrong forum for voicing his grievances and in case the court were inclined to issue directions for checking the votes recorded in the electronic voting machine, it may be clarified that it was under the peculiar and exceptional circumstances of the case that such direction had to be issued and that it may not be treated as a precedent in other cases.
4. As is clear from the facts on record and the previous orders dated 23.4.2012 and 24.4.2012, it was found that urgent order calling for the record and the officer concerned were issued. Having regard to the attending facts and circumstances and the exceptional circumstance of the petitioner having lost his opportunity to pursue appropriate statutory remedy, while this Court was seized of the matter, it is directed that the electronic voting machine, wherein votes related to the petitioner and respondent No.4 have been recorded, shall be brought before this Court, with necessary security and police protection, and the number of votes cast in favour of the petitioner and respondent No.4 shall be checked in presence of an officer of the State Election Commission authorised in that behalf and a technical expert, if required, (who shall be brought along by the officer of the Election Commission) as also learned counsel appearing for the parties, before this Court on 05.07.2012 at 02.45. p.m. It is clarified that it is in the very exceptional circumstance of this case that the aforesaid direction is issued and in case the statements and averments made by the petitioner turn out to be incorrect, appropriate further order as to cost shall have to be made.
A copy of this order may be given to learned counsel for the State Election Commission. S.O. to 05.07.2012.
Sd/-
( D.H.Waghela, J.) Sd/-
( G.B.Shah, J.) (KMG Thilake) Top