Gujarat High Court
Ismail Noormohmad Mehta And Ors. vs State Of Gujarat And Ors. on 1 May, 1995
Equivalent citations: (1996)1GLR549, 1996 A I H C 3430, (1995) 2 GUJ LH 563 (1996) 1 GUJ LR 549, (1996) 1 GUJ LR 549
JUDGMENT R.K. Abichandani, J.
1. The petitioner who are ex-members of the outgoing elected body which was formerly Sihor Nagar Panchayat, now converted into Municipal Borough under the provisions of the Gujarat Municipalities Act, 1963, have preferred this petition praying for setting aside the demarcation of wards made by the Gujarat State Election Commission-respondent No. 2 herein, under the Notification dated 26th October, 1994 at Annexure "A" to the petition. A direction is sought on the respondents to demarcate wards and allocate reserved seats as suggested by the petitioners.
2. Sihor Nagar Panchayat was converted into Sihor Nagarpalika by a notification dated 15th April, 1994. As per the last census of 1991, population of Sihor Nagarpalika is 33,255. Nagarpalika was devided into 9 wards and allocated 27 seats by a notification dated 14th October, 1994. This notification was issued by the State Government under Section 7(2) of the said Act. The respondent No. 2 published preliminary notification on 26th October, 1994 indicating demarcation of wards and allocation of reserved seats for the Nagar Panchayat. According to the petitioners, there are serious discrepancies in the demarcation of wards made by the Respondent No. 2 and demarcation was done in violation of Rule-3 of the De-limitation of wards and Allocation of reserved seats in Municipal Borough Rules, 1994 (hereinafter referred to as the "Rules"). It is contended that instead of maintaining the geographical nearness and the boundaries as per the rules, the Ward No. 1 was demarcated in such a manner that it crosses the Highway. It is also contended that Rule-5 of the said Rules has not been observed in allocation of the reserved seats for backward class female, and that allocation for reserved seats was made without any concurrence of the political parties. It is further contended that written objections which were submitted to the Respondent No. 2 have not been considered and without any application of mind, the Respondent No. 2 has mechnically demarcated the limits of Municipal Borough, without even applying mind to the basic principle of "one man, one vote".
3. It was contended on behalf of the petitioners that the election process would start only when notification declaring election is issued under the Conduct of Election Rules, and therefore, petitioners could not have challenged the limitation of wards by filing an Election Petition under Section 14 of the said Act. This submission was made in answer to the Preliminary contention which was raised on behalf of the respondent in context of the provision of Article 243-ZG of the Constitution of India. Relying on the decision of Supreme Court in N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency and Ors. , it was contended on behalf of the petitioners that only when the election process starts that the petitioners can be relegated to filing of the election petition under the State Law. It was contended that the word "Election" in Article 243-ZG is not defined in the Constitutional provisions, and therefore, it should have its normal meaning viz., the stage after the election process is started by issuing notification declaring the programme of election.
3.1 Article 243-ZG imposes a bar to interference by Courts in Electoral matters in the following terms:
Notwithstanding anything in this Constitution:
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made article 243-ZA shall not be called in question in any Court;
(b) No election to any Municipality 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.
4. In this petition, no question of validity of any law relating to the de-limitation of constituencies of the allotment of seats to such constituencies is raised, and therefore, Cluase (a) of Article 243-ZG is not attracted. Under Clause (b) of Article 243-ZG no election to any Municipality can be called in question except by an Election Petition. The election petition is to be provided for under a law made by the State Legislature and the challenge against the election is to be made in the manner as may be provided for under such law. Therefore, the only way in which election to any Municipality can be called in question is to resort to an Election Petition for which a provision is made in the law made by the State Legislature. This provision over-rides any other provision of the Constitution, as is clear from the opening words "Notwithstanding anything in this Constitution...". Therefore where the provisions are made by the State Legislature for an election petition, the ambit of challenge against the election to a Municipality is circumscribed by the provisions of such law made by the State Legislature. Section 14 of the said Act provides for determination of the validity of election and lays down that the validity of any election of a Councillor can be brought in question at any time withtin 15 days after the date of declaration of results of the election, by making an application with the District Court for the determination of such question and the Judge may after such inquiry as he deems necessary pass an order confirming or amending the declared results of the election or set-aside the election. Thus, the State Legislature has provided for filing of an election petition in which election to any Municipality can be called in question. Since reference in Article 243-ZG is to the law made by the State Legislature in context of the election of a Municipality being called in question, the concept of "election" as incorporated in the Municipal Law becomes relevant. Therefore, definition of word "Election" incorporated in Section 2(7A) of the said Act is required to be noticed for as ascertaining the ambit of a petition under Section 14 of the said Act, under which the questions regarding validity of any election of counsellors can be determined. The term "election" as defined in Section 2(7A) of the said Act reads as under:
7 (A) "Election" means and includes the entire election process commencing from the division of wards and all stages culminating into election of a councillor and it is always deemed to have meant and included the entire election process as aforesaid.
5. In view to this definition, the election process in respect of the said Municipality has already commenced by the division of wards. Thus, since the election process has already commenced, such process cannot be called in question except by an election petition, in the manner provided for in Section 14 of the said Act and the High Court cannot entertain the petition in view of the bar imposed by Article 243-ZG on the Courts to interfere in electoral matters except by the election petition. The decision of Supreme Court in N.P. Ponnuswami's case therefore cannot assist the petitioners. In fact, the Supreme Court in N.P. Ponnuswami (supra) has in terms held, in context of election to the State Legislature, that having regard to its important functions in a democratic set-up, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. Thus if any irregularity is committed while election is in progress, it should be brought before the Special Tribunal by means of the election petition and not be made a subject of dispute before the Court in view of specific provisions of Article 243-ZG of the Constitution. In the context and setting of the expression "No election to any Municipality can be called in question appearing in Article 243-ZG", it is clear that even on the ground of improper de-limitation of the constituencies, election to any municipality cannot be called in question except by an election petition and in such a manner as may be provided for in the State Law. In other words, the law made by the State Legislature can be the only source of calling in question the elections of any Municipality and the grounds of challenge can only be such as are provided by such law. Therefore, this petition challenging the de-limitation of wards done under the Notification issued by the State Election Commission cannot be entertained by this Court.
6. It was contended on behalf of the respondents that for satisfying the conscience of the Court they have placed on record material to show that the State Election Commission had scrupuloulsy followed the provisions of the said rules. As stated in the affidavit-in-reply filed on behalf of Respondent No. 2, the Preliminary Notification showing the proposed de-limitation of wards and allocation of seats was issued by the Respondent No. 2 and a meeting was held on 23rd January, 1995 in the Office of the Collector for considering the suggestions and for having consultation with the political parties. The petitioners has also tendered their suggestions which were considered by the Commission. Opinion of the Collector was also obtained and thereafter final notification was published on 4th February, 1995 at Annexure "C" to the petition. The record does indicate that the Commission had taken into account suggestions and had consulted the parties in compliance with the provisions of the said rules. The Commission has placed by way of affidavit on record, the facts which indicate compliance with the Rules 3, 5, 8 and other provisions of the said Rules and it is not for this Court to sit in appeal over the finalisation of the de-limitation of wards and allocation of seats done by the State Election Commission in exercise of its statutory powers. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself. Judicial review, if at all, can be directed only to the decision making -process and not the decision itself. The State Election Commission has followed the statutory process laid down under the rules for deciding the delimitation of wards and allocation of seats and the petitioners have failed to make out any ground against the validity of the said decision. There is, therefore, no warrant for interfering with the impugned de-limitation of wards and allocation of seats done by the Election Commission in respect of the Sihor Municipality. This petition therefore fails and is rejected. Notice is discharged with no order as to costs.