Gujarat High Court
Harshadray Keshavlal Patel vs State Of Gujarat & 4 on 20 July, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/13372/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13372 of 2017
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HARSHADRAY KESHAVLAL PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR. NISHIT P GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 , 3
MR DILIP D. RANA, ADVOCATE for the Respondent No. 5
None for the Respondent No.4 though served.
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 20/07/2017
ORAL ORDER
1. Considering the exigency in the matter, the same is decided finally at the admission stage with the consent of learned Advocates for the parties.
2. The petitioner by way of present petition filed under Article 226 of the Constitution of India has challenged the order dated 13.07.2017 passed by the Respondent No.3 (AnnexureG) Election Officer rejecting the nomination form of the petitioner.
3. The brief facts giving rise to the present petition are that the petitioner is the sole proprietor of the proprietorship concern i.e. Patel Harshadray Chunilal. The petitioner is a Page 1 of 12 HC-NIC Page 1 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER trader in the Respondent No.2APMC and is also the licence holder. According to the petitioner, election of the APMC, Patan had not taken place since last many years. On 02.05.2017, the election programme was published for holding election of APMC, Patan on 26.07.2017 (Annexure A). It is further case of the petitioner that as per the final voters' list published on 12.06.2017 in respect of the Traders' constituency, the name of the petitioner was reflected at Sr. No.281. The petitioner being desirous to contest the election, had submitted the nomination paper in the prescribed Form on 12.07.2017, with the signature of the proposer one Jigarbhai Narottamdas Patel Respondent No.4 herein, whose name was also reflected at Sr. No.300 in the voters list. On 13.07.2017, when the nomination forms were to be scrutinized by the Respondent No.3Election Officer, the Respondent No.5 Patel Madhavlal Jesangbhai submitted an application raising objection against the nomination of the petitioner on the ground that the Respondent no.4 proposer had withdrawn his proposal. The Election Officer therefore rejected the nomination of the petitioner vide the impugned order dated 13.07.2017 (AnnexureG), which is under challenge before this Court.
4. The petition has been resisted by the Respondent No.3 Election Officer and by the Respondent Page 2 of 12 HC-NIC Page 2 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER No.5, objector by filing their respective replies. Nobody appears for Respondent No.4 proposer, though duly served as per the affidavit of service filed by the petitioner.
5. Learned Advocate Mr.Nishit Gandhi for the petitioner taking the Court to the various provisions of the Gujarat Agricultural Produce Markets Act (hereinafter referred to as 'the said Act') & Rules framed thereunder (hereinafter referred to as 'the said Rules') submitted that as per Rule 11, the nomination paper in the prescribed FormI had to be signed by the person qualified to vote at the election and the candidate had to sign a declaration expressing his willingness to stand for the election. He further submitted that the Election officer had very limited scope of inquiry at the time of scrutiny of the nomination forms, and could reject the nomination form only on two grounds as mentioned in Rule 16 of the said Rules, however, in the instant case, the Election Officer had travelled beyond his authority by rejecting the nomination of the petitioner on the ground that the proposer had withdrawn his proposal on 13.07.2017. Mr.Gandhi expressed his apprehension that the proposer had not remained present before the Election Officer but some other person personifying himself as proposer had remained present at the instance of the objector, and relying upon such objection application of the Page 3 of 12 HC-NIC Page 3 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER Respondent No.5 objector, the Election Officer had rejected the nomination form of the petitioner. Mr.Gandhi has relied upon various decisions of this Court to submit that except on the grounds mentioned in Rule 16, the Election Officer had no innovative or ingenious powers to reject the nomination of the candidate. He also relied upon the decision in case of Rajendra Koticha Vs. State of Gujarat reported in 2007 (2) GLR 1642, to submit that intervention of the Court is necessary for the welfare of the constituency.
6. However, learned AGP Mr.Venugopal Patel for the Respondent No.3Election Officer submitted that the Election Officer had to consider the objections raised by the objector at the time of scrutiny of the nomination forms and the respondent no.5 objector having raised the objection that the proposer had withdrawn his proposal in support of the petitioner, the Election Officer had rightly rejected the nomination form of the petitioner. He submitted that the Election Officer had verified about the veracity of the application of the proposer and put his endorsement on the application of such withdrawal. According to him, the stages of verification and examination of the nomination forms by the election officer have been mentioned in Rule 11 to 16 of the said Rules, and that he had the powers to reject the nomination, if any Page 4 of 12 HC-NIC Page 4 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER of the grounds mentioned in Rule 16 existed. Relying upon the decision of the Full Bench, in case of Daheda Group Seva Sahakari Mandali Ltd. Vs. R.D. Ropahit, Authorised Officer and Cooperative Officer (Marketing) reported in 2006GCD1211, he submitted that petitioner having alternative remedy to approach the Director under Rule 28 of the said Rules, this Court may not exercise extraordinary jurisdiction, more particularly when the nomination form of the petitioner was not found in accordance with the Rules. He also relied upon other judgments of this Court to submit that once the election process has started, the High Court should not interfere with the same.
7. Learned Advocate Mr.Dilip Rana for the Respondent No.5 objector has supported the submissions made by learned AGP Mr.Patel and further submitted that the proposer having withdrawn the support of the petitioner, the nomination form of the petitioner was rightly rejected by the Election Officer.
8. In the instant case, it appears that it is not disputed that the name of the petitioner and the name of the proposer were included in the voters' list of traders constituency for the election of APMC, Patan. It is also not disputed that the petitioner was qualified to contest the election and had submitted the nomination paper in the Page 5 of 12 HC-NIC Page 5 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER prescribed form on 12.07.2017, the date fixed as per the election programme (AnnexureB). It is also not disputed that in the said prescribed nomination form, the particulars as regards the name and number of the Respondent No.4 as the proposer were duly filled up and the proposer had also duly put his signature, and the petitioner had duly made declaration as required under Rule 11 of the said Rules. The Election Officer had also accepted the said nomination form and verified the name of the proposer as per Rule 13 of the said Rules. It is pertinent to note that the proposer has not disputed his signature on the said nomination form, nor has he come out with the case that his signature was obtained under pressure or coercion or by committing fraud or misrepresentation by the petitioner. Therefore, the nomination form when submitted was absolutely in conformity with the requirement of the Rule 11 of the Rules. It was only when on 13.07.2017, the scrutiny of the nomination form was fixed by the Election Officer, it appears that the respondent no.5objector submitted an application raising objection against the nomination of the petitioner on the ground that the proposer had withdrawn his proposal. He had submitted a copy of the application of the proposer withdrawing his proposal. The Election Officer on the basis of such objection rejected the nomination of the petitioner by the impugned order. The question therefore which falls for Page 6 of 12 HC-NIC Page 6 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER consideration before this Court is as to whether nomination of the petitioner could have been rejected by the Election Officer on the ground that the proposer had withdrawn his proposal at the time of scrutiny of the nomination form, which otherwise was as per the Rules when presented by the petitioner.
9. At this juncture, it would be beneficial to reproduce Rule 16 of the said Rules, which reads as under:
"16.Disposal of objections and rejection of nomination: (1) The Election Officer shall then examine the nomination papers and shall decide all objections which may be made at the time of scrutiny to any nomination and may, either on, such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, namely:
(i) that the proposer is a person whose name is not in the relevant list of voters, or
(ii) that the nomination has not been made in accordance with these rules.
(2) The Election Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination Page 7 of 12 HC-NIC Page 7 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER paper is rejected, shall record in writing a brief statement of his reasons for such rejection. The scrutiny shall be completed on the day fixed in this behalf and shall not be adjourned on any ground."
10. From the bare reading of the said Rule, it is explicitly clear that the Election Officer could reject the nomination form of the candidate only on two grounds mentioned therein namely, on the ground that the proposer is a person whose name is not in the relevant list of voters, or on the ground that the nomination has not been made in accordance with the rules. As held by this Court in case of Kanjibhai B. Patel Vs. Election Officer, reported in 2007 (1) GLR 259, the power of rejection of a nomination has to be exercised by the Election Officer within the defined and earmarked domain, and that innovative and ingenious exercise of power or interpretation of Rule 16 is not permissible. As stated earlier, in the instant case, the petitioner had submitted the nomination form as prescribed under Rule 11 of the Rules with the signature of the proposer, expressing his willingness to contest election. It is also not disputed by the respondents that the nomination form was in accordance with the Rules when submitted. It is only after the submission of the nomination form by the petitioner and acceptance of the form by the Election officer on 12.07.2017, the objection was Page 8 of 12 HC-NIC Page 8 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER raised by the objector on 13.07.2017 at the time of scrutiny of the form that the proposer had withdrawn his proposal. On such objection having been raised, the nomination has been rejected by the Respondent no.3. It is pertinent to note that the respondent no.3 while rejecting the nomination has failed to mention as to how the case of the petitioner fell under any of the grounds mentioned in Rule 16. The requirement of the Rule 11 was that it had to be signed by the person qualified to vote. There was no requirement of any of the Rules that the proposer should continue to support the candidate till the election was held. In the opinion of the Court, the Election officer therefore had no authority to consider such application allegedly given by the proposer withdrawing his proposal and reject the nomination on such ground. Even if, the proposer had subsequently withdrawn his proposal after the submission of the nomination form, it could not be said that the nomination of the petitioner was not in accordance with the Rules, more particularly when the proposer did not dispute his signature on the nomination form. Under the circumstances, the election officer had clearly travelled beyond his authority and jurisdiction by rejecting the nomination of the petitioner on the extraneous consideration.
11. It is true that ordinarily, the writ Court should be loath to invoke the extraordinary jurisdiction Page 9 of 12 HC-NIC Page 9 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER under Article 226 of the constitution of India in an election matter, as submitted by the learned AGP, however, it is equally true that when the statutory authority like the Election Officer tries to exercise powers which are nonexistent or misconceived, such action must be brought under the legal parameters of judicial review under Article 226 of the Constitution. A very pertinent observations made by the Supreme Court in case of Election Commission of India Vs. Ashok Kumar and Ors. reported in (2000) 8 SCC 216 may be regurgitated. It is observed in Para No.28 as under: "28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over enthusiastic activist would do. The two extremes Page 10 of 12 HC-NIC Page 10 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER have to be avoided in dealing with election disputes.
12. The Supreme Court in the said case, while laying down certain guidelines also observed inter alia that the actions taken or orders issued by the Election Officer are open to judicial review on well settled parameters, which enable judicial review of decision of statutory bodies such as in a case of malafide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. In the instant case, the Court having found that the respondent no.3 Election officer had acted dehorse his powers under Rule 16 of the Rules, this is a fit case to invoke the power of judicial review emanating from Article 226 of the Constitution of India. As rightly submitted by Mr.Gandhi, such intervention of the Court is neither going to interrupt or obstruct the election process nor protract the election proceedings but it shall prevent miscarriage of justice having culminated as a result of the impugned order.
13. In that view of the matter, the impugned order passed by the Election Officer deserves to be set aside and is hereby set aside. The Election officer is directed to accept the nomination of the petitioner. The petition is allowed. Direct service is permitted.
Page 11 of 12HC-NIC Page 11 of 12 Created On Sun Aug 20 22:38:37 IST 2017 C/SCA/13372/2017 ORDER (BELA M. TRIVEDI, J.) Tuvar Page 12 of 12 HC-NIC Page 12 of 12 Created On Sun Aug 20 22:38:37 IST 2017