Gujarat High Court
Akoliya Mohanbhai Ukabhai vs State Of Gujarat & on 8 January, 2013
Author: Jayant Patel
Bench: Jayant Patel
AKOLIYA MOHANBHAI UKABHAIV/SSTATE OF GUJARAT C/SCA/16012/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16012 of 2012 ================================================================ AKOLIYA MOHANBHAI UKABHAI & 7....Petitioner(s) Versus STATE OF GUJARAT & 17....Respondent(s) ================================================================ Appearance: MR DIPAN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 8 MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 3 MR ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 08/01/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) We have heard Mr.Mihir Thakore with Mr. Dipan Desai for the petitioners and Mr. Mihir Joshi with Mr. Anshin Desai for respondent no.5 appearing by caveat.
It prima facie appears that when any election is under challenge, the authority clothed with the power to decide the election dispute has broadly to examine two aspects; one would be whether there was material irregularity in the election process and the another would be whether such material irregularity has vitiated the whole election or whether such material irregularity has materially altered the result of the election or not and if yes, to what extent. At this stage, we may refer to the decision of the full bench of this Court in the case of Daheda Group Seva Sahakari Mandli Ltd. Vs. R.D. Rohit, Authorised Officer and Cooperative Officer (Marketing), 2006(1) GCD 211 and more particularly, the observations made at paras 29 and 30, which read as under:
29. Turning now to the second contention namely; can remedy under Rule 28 can be termed to be efficacious remedy. Learned Counsel Mr Patel after inviting our attention to rule 28 submitted that even though the authority either can cancel or confirm and amend the declared result and can direct to hold fresh election in the event of setting aside the election, if the non-inclusion of the names in the voters' list has not materially affected, result of the election which is very difficult to establish then, the election cannot be set aside. In that event, the right under the statute to cast the vote shall not be available to the person whose name is wrongfully excluded from the voters' list. He submitted that even the Director or the competent authority under rule 28 cannot confer the right to vote. Under the provisions of rule 9 read with section 15 of the Act, the election is required to be held afresh. In that event, a person who has lost his right to vote remains the claimant for getting the right to vote but that right cannot be decided by the authority under the rules or provisions of the Act. He submitted that the voters' list is to be prepared for every election and the voters' list is not continued.
If the voters' list is not continued, in that event, by no stretch of imagination, a person can get right to vote. By giving example, he submitted that if 50 voters have been excluded from the voters' list by wrongful order, in that event, in a petition by one member the right of other 49 cannot be decided. Under the circumstances, he submitted that the remedy under rule 28 cannot be termed as efficacious remedy. Finally he submitted that in absence of any right to appeal, the power conferred on authorised officer would lead to hazardous situation.
30. The arguments advanced by Mr Patel appears to be attractive, however, in substance, devoid of any merit. Having regard to the language and terminology of rule 28 of the rules, we are of the view that it leaves no room of doubt that it includes the question of inclusion, exclusion or wrongful inclusion or exclusion in an illegal, arbitrary or malafide manner of name of an eligible voter in voters' list and the question can be gone into in an election petition under Rule 28 and, therefore, in an election election petition such a question can be validly raised, adjudicated and ultimately relief granted, if a case is made out and it is proved that on account of such wrongful inclusion or exclusion the result of the election is materially affected. In any case, the efficacious remedy provided under the Act would not entitle the petitioner to contend as a matter or right that he is entitled to invoke the jurisdiction of this court.
If the order of the State Government is considered it prima facie appears that there is no exemption on the aspects as to whether the so called irregularity for inclusion and/or exclusion of certain voters has materially affected the result of the election or not.
It was submitted by the learned counsel for the petitioners that no evidence was led by the election petitioner before the Director, but even if it is considered that all the voters of 10 societies could have been against the return candidate then also such would not materially alter the result of the election except for one Aal Jorabhai Ramsibhai but of course the aforesaid contention was without prejudice to the first contention that no evidence was led by the election petitioner.
Whereas Mr. Joshi appearing for the election petitioner submitted that he is not admitting the facts stated by Mr. Thakore that it would only affect the aforesaid one candidate Aal Jorabhai Ramsibhai and he submitted that in a given case, if the authority finds that the material irregularity is such which has vitiated the election, the effect on the result of the election would be irrelevant. In his submission, despite of all the consequences, the election officer had committed material irregularity prior to the election and there were litigations in which ultimately certain voters were included. However, he fairly submitted that the said aspect is not considered by the State Government in the impugned order.
In our view, it is well settled legal position that pending the election dispute, the elected representative cannot be restrained from functioning. Even if the restraining order is to be passed, Court would consider the aspects of material effect on the result of the election. As observed earlier, in respect of one of the petitioners, viz., Aal Jorabhai Ramsibhai also, that question may arise only if it is proved by way of affidavit or otherwise that all the members of the managing committee of 10 societies would have caste the vote against the said candidate then only it may materially affect the result of the election qua him. In absence of any evidence produced before the Director by the election petitioner, and non-consideration thereof by the State Government since such was not there on record, it would not be proper to restrain all the elected candidate/representative from functioning who are already functioning since 2011. At the most, the voting by petitioner no.7 should be controlled in a manner that no undue benefit is extracted therefrom nor there is any serious adverse effect on the regular functioning of the market committee in policy matters.
Hence, Rule returnable on 04.02.2012.
By interim order, it is directed that the operation and implementation of the order passed by the State Government at Annexure-A shall remain stayed and suspended with the further direction that the functioning of the petitioner no.1 to 8 as members of the market committee shall be subject to the further orders of this Court. But there shall be additional direction also that the petitioner no.7 will be permitted to participate as a member in routine business of the market committee and his vote shall be taken into consideration. However, so far as policy matters of the market committee are concerned, the vote of petitioner no.7 shall be separately counted and if his vote at the business transacted at the meeting for policy matter is to affect in the ultimate decision, such policy shall not be taken as duly approved but if in exclusion of the vote of petitioner, the resolution is passed even for policy matter by majority, the same shall be permitted in accordance with law.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) BIJOY Page 5 of 5