Gujarat High Court
Dharmisthaben Vishalkumar Patel vs The State Election Commission on 6 January, 2022
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18198/2021 ORDER DATED: 06/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18198 of 2021
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DHARMISTHABEN VISHALKUMAR PATEL
Versus
THE STATE ELECTION COMMISSION
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Appearance:
MR VC VAGHELA for MR ANIL H PATEL(7832) for the Petitioner(s) No. 1
HEMALI D SONI(8450) for the Petitioner(s) No. 1
MS ROOPAL PATEL for the Respondent(s) No. 1
MS DHWANI TRIPATHI, AGP for the State Government authorities
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 06/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. V.C. Vaghela, learned advocate for Mr. Anil Patel, learned advocate for the petitioner, Ms. Roopal Patel, learned advocate for respondent no.1 and Ms. Dhwani Tripathi, learned AGP for the State Government authorities.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following main reliefs:-
"(B) Your Lordships may be pleased to issue writ of mandamus or writ in the nature of mandamus or a writ of certiorari or any other appropriate writ order or direction directing the respondents to include the names of the petitioner in the voters list for the election of Lavarpur Gram Panchayat and allow the petitioner to take part in the election of Lavarpur Gram Panchayat.Page 1 of 6 Downloaded on : Wed Jan 12 17:35:04 IST 2022
C/SCA/18198/2021 ORDER DATED: 06/01/2022 (BB) YOUR LORDSHIPS may please to issue appropriate writ, order or direction quashing and setting aside the order dated 03.12.2021 as illegal and further be please to hold that the petitioner is qualified to be a voter for election of Lavarpur Gram Panchayat and further be please to direct the respondent authorities to hold the nomination form of petitioner as valid and allow the petitioner to contest the election of Sarpanch from Village Lavarpur;
(C) Pending admission and final disposal of this petition Your Lordships may be pleased to include the names of the petitioner in the voters list for the election of Lavarpur Gram Panchayat and allow the petitioner to take part in the election of Lavarpur Gram Panchayat.
(CC) During the pendency, admission and final disposal of the petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to not cancel the nomination of the petitioner as invalid; and"
3. Ms. Tripathi, learned AGP for the State Government authorities submitted that the elections were held on 19.12.2021 and the election programme is as under:-
Election Programme Sr. Details Date No. 1 Date of declaration of 22.11.2021 election Page 2 of 6 Downloaded on : Wed Jan 12 17:35:04 IST 2022 C/SCA/18198/2021 ORDER DATED: 06/01/2022 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 6 Date 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. Even by way of amendment, what has been prayed for is to declare the petitioner as qualified voter for election of Lavarpur Gram Panchayat, which is already over. Considering the prayers prayed for, no relief can now be granted as the term of the newly elected Gram Panchayat is for 5 years. Mr. Vaghela, however, insisted that this point may be decided even though the election is over.
5. 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 :Page 3 of 6 Downloaded on : Wed Jan 12 17:35:04 IST 2022
C/SCA/18198/2021 ORDER DATED: 06/01/2022 (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 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 Page 4 of 6 Downloaded on : Wed Jan 12 17:35:04 IST 2022 C/SCA/18198/2021 ORDER DATED: 06/01/2022 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 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. 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 Page 5 of 6 Downloaded on : Wed Jan 12 17:35:04 IST 2022 C/SCA/18198/2021 ORDER DATED: 06/01/2022 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.
7. As stated above, the election is over and the prayers prayed for cannot now be considered in exercise of 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.
8. 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 17:35:04 IST 2022