Gujarat High Court
Rajeshbhai Dayabhai Sagathiya vs Returning Officer, Bhanvad ... on 13 February, 2025
NEUTRAL CITATION
C/SCA/1821/2025 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1821 of 2025
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RAJESHBHAI DAYABHAI SAGATHIYA & ORS.
Versus
RETURNING OFFICER, BHANVAD MUNICIPALITY AND DY. DISTRICT
DEVELOPMENT OFFICER & ORS.
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Appearance:
MR PUNIT B JUNEJA(3972) for the Petitioner(s) No. 1,2,3,4
MS AISHVARYA(8018) for the Respondent(s) No. 2
MR G. H VIRK, ADVOCATE with
MS DHARITRI PANCHOLI, AGP with
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/02/2025
ORAL ORDER
1. This petition is filed seeking following prayers: -
"a. Issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 03.02.2025 passed by Respondent No. 1, whereby the nomination forms of the Petitioners were rejected. (Annexure-A) b. Direct the Respondents to accept the nomination forms of the Petitioners and allow them to contest the elections of Ward No. 2 of Bhanvad Municipality.
c. Grant an interim stay on the operation of the impugned order dated 03.02.2025, pending the final disposal of this petition.Page 1 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025
NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined d. Pending admission and final hearing of this petition the respondents may be directed to not declare the results of the election of the Ward No. 2 of the Bhanvad Municipality."
2. It is case of the petitioners that the order dated 03.02.2025 of respondent No. 1, rejecting nomination form of the petitioners is unjust, illegal and therefore the said order deserves to be quashed and set aside. A prayer with regard to directing the respondents permitting the petitioners to contest the election by accepting their nomination forms for Ward No. 2 of Bhanvad Municipality is also prayed.
3. Heard learned advocate Mr. Punit Juneja for the petitioners and learned advocate Mr. G. H. Virk assisted by learned Assistant Government Pleader Ms. Dharitri Pancholi and learned Assistant Government Pleader Mr. Sahil Trivedi for respondent No. 1 - Returning Officer and learned advocate Ms. Aishvarya for respondent No. 2 - State Election Commission, Gujarat.
4. Learned advocate Mr. Punit Juneja for the petitioners submitted that the impugned order dated 03.02.2025 is ex- facie illegal on the following grounds: -
4.1 As can be seen from the noting of the of the order dated 03.02.2025, that non acceptance of the nomination forms of Page 2 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined the petitioners was done at 16:45 hours i.e., 04:45 PM. As per the mandate of election a decision for acceptance or otherwise of the nomination forms is to be taken on or before 3:00 PM and in this case mandate of timing being not followed, order dated 03.02.2025, deserves to be quashed and set.
4.2 Petitioners herein are at Sr. No. 6, 7, 8 and 9 in the order dated 03.02.2025, wherein their nominations were rejected on the ground that, mandate in Form 'KH' was defective and did not comply with the requirements of the State Election Commission of Gujarat. The objections raised in relation to Form 'KH' is erroneous because Aam Admi Party is a recognized political party and the mandate issued by its authorized State level office bearers cannot be treated as invalid unless proven otherwise.
4.3 Learned advocate for the petitioners by placing reliance on the notification of Election Commission dated 23.12.2024, submitted that the notification refers to only recognized and non-recognized political parties and it does not refer to any National or State parties and therefore the objection raised being beyond the notification of Election Commission dated 23.12.2024, the order dated 03.02.2025 rejecting the nomination on the ground of 'its not a State party' deserves to be quashed and set aside.Page 3 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025
NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined 4.4 From the order dated 03.02.2025, it is evident that earlier the scrutiny was done and the petitioners' nominations were accepted. Thereafter, upon receipt of complaints, the forms were re-scrutinized and the decision was taken rejecting the nomination form. This second scrutiny pursuant to the complaint filed is not permitted and therefore the order dated 03.02.2025 deserves to be quashed and set aside.
4.5 Further, the order dated 03.02.2025 records that the earlier Rojkam has been destroyed. The order further records that to prevent misuse, the earlier Rojkam was destroyed. The entire action of destroying Rojkam being arbitrary exercise of powers, the impugned order deserves to be quashed and set aside.
4.6 On the aspect of maintainability of present petition, learned advocate for the petitioners relied upon the decision of this Court in the case of Dineshbhai Palabhai Patar vs. Gujarat State Election Commission and Or, in Special Civil Application No. 19261 of 2016, decided on 23.11.2016, to submit that there is no express bar and as per well settled parameters judicial review of decisions of Statutory Bodies is permissible in the cases of malafide or arbitrary exercise of powers and therefore in this case the non-maintainability of present Page 4 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined petition may not be the ground for rejecting the petition.
4.7 Learned advocate for the petitioners therefore submitted that this petition may be allowed by permitting the petitioners to participate in the election process which are to be held on 16.02.2025 by accepting their nomination form.
5. Strenuously opposing the petition learned advocate Mr. G. H. Virk for respondent No. 1 - Returning Officer, invited attention of this Court to Article 243 ZG(b) r/w Article 243Q of the Constitution of India to submit that no election of any Municipality shall be called in question except by an Election Petition presented to such authority and in such manner as is provided by or under any law made by legislature of the State. In this case, under Sections 14 to 16 r/w Section 2(10) of the Gujarat Municipalities Act, 1963 (for short 'the Act, 1963') there is a statutory remedy available of filing of Election Petition before the appropriate forum. In view of alternative efficacious remedy available to the present petitioners, the present petition may not be entertained.
5.1 Learned advocate for respondent No. 1 also relied upon Section 14(7) of the Gujarat Municipalities Act, 1963 to submit that even in the Election Petition the scope of judicial review is very limited. Therefore, since the alternative remedy has not Page 5 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined been availed by the present petitioners, the present petition may not be entertained.
5.2 In support of submission in relation to maintainability of present petition on the ground of having alternative remedy available, learned advocate relied upon following decisions: -
In the case of Shaji K. Joseph vs. V. Viswanath and Ors reported in (2016) 4 SCC 429;
In the case of Mohmed Javid Abdulmutlib Pirzada vs. State of Gujarat reported in 2023 (0) AIJEL-HC 244962;
In the case of Dilipbhai Chhotubhai Vasava vs. State of Gujarat decided on 25.02.2021 in Special Civil Application No. 3922 of 2021;
In the case of Mhammedsoyab Abdulrahim Dal vs. State Election Commission, Gujarat State and Anr decided on 22.01.2025 in Special Civil Application No. 16727 of 2024.
5.3 Apart from his preliminary objections, learned advocate Mr. Virk for respondent No. 1 also made submissions on merits. Leaned advocate submitted that the conduct of the Page 6 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined petitioners may be seen because how to fill the nomination form has been referred in Rule 7 of the Gujarat Municipalities (Conduct of Elections) Rules, 1994. Learned advocate referring to proviso to sub-Rule 2 of Rule 7 of the Gujarat Municipalities (Conduct of Elections) Rules, 1994 submitted that if a candidate is not set up by recognized political party shall not be deemed to be duly nominated for election from a ward, unless the nomination paper is subscribed by 10 proposers and 10 seconders being electors of that ward. In this case, the party on behalf of which the nomination form was filed up by the petitioners, is not a recognized political party by the State and therefore on merits also the petition does not require any consideration.
6. Learned advocate Ms. Aishwarya for respondent No. 2 supported the submissions made by learned advocate for respondent No. 1. In furtherance thereto learned advocate for respondent No. 2 relied upon Section 14(5a) (3) of the Gujarat Municipalities Act, 1963 to submit that in an Election Petition there are powers assigned to the Judge to set aside the election if the nominations have been improperly rejected.
Therefore, since the powers are assigned to the Judge to look into factual aspect and to peruse the evidence, filing of petition under Article 226 of the Constitution of India, at this stage is not required to be entertained and this petition be Page 7 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined rejected on the ground of petitioners having alternative efficacious remedy under the provisions the Gujarat Municipalities Act, 1963.
6.1 Learned advocate for respondent No. 2 further submitted that most importantly under Rule 67 r/w Rule 30 of the Gujarat Municipalities (Conduct of Elections) Rules, 1994, if the candidates have been declared elected as unopposed by the Returning Officer, then the certificate under Rule 67 is to be issued and in this case the same has been issued by the Returning Officer. Learned advocate for respondent No. 2 has placed on record the order dated 04.02.2025 issued by Returning Officer declaring the other candidates as elected unopposed. The certificate in this regard dated 04.02.2025 is also placed on record. Learned advocate therefore submitted that now that the candidates have been declared as elected unopposed, only formality remains is of only publication. Since the election results are declared the present petition may not be entertained.
7. Considered the submissions and the decisions relied upon. This Court would like to go into the aspect of maintainability of this petition, on the ground of petitioners having alternative statutory remedy of filing election petition. It is also noticed that in the decision of this Court, this Court has recorded that Page 8 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined there is no complete ban on the maintainability of the petition if the powers are exercised in arbitrary manner or there are allegations of malafide which are proved beyond doubt. However, in the decision of Hon'ble Supreme Court in the case of Shaji K. Joseph [supra] it is held as under: -
"3. The Learned Singe Judge of the High Court vide judgment dated 23rd May, 2011 allowed Respondent no.1's Writ Petition by setting aside the order passed by the Returning Officer, rejecting nomination in respect of candidature of Respondent no.1 and directed the Returning Officer to conduct the election afresh after including name of Respondent no.1 and to declare the result on the basis of such election to be conducted afresh from the stage after submission of the nominations.
4. Being aggrieved by the aforestated judgment delivered in the writ petition, the present appellant preferred Writ Appeal No.806 of 2011 assailing the validity and correctness of the said judgment rendered by the Learned Single Judge of the High Court. The Division Bench of the High Court dismissed the Writ Appeal by its judgment dated 18th July, 2011 and therefore, the appellant has approached this Court by way of this appeal.
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15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was Page 9 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election."
8. In one more decision in the case of Mohmed Javid Abdulmutlib Pirzada [supra] in relation to alternative remedy has held as under:-
"[10] We have even independently examined the said issue relating to alternative and efficacious Page 10 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined remedy available and find that conjoint effect of the relevant rules would clearly indicate that possible view of the learned Single Judge is not erroneous rather said view is well supported by the decision delivered by full bench of this Court in the case of Daheda Group Seva Sahakari Mandli Limited (supra). We deem it proper to extract and quote hereunder the relevant paragraphs from the said decision:-
"4. In view of the conflicting judgments of the Division Benches of this Court wherein some of the Division Benches had taken a view that the inclusion or non inclusion of the names in the voters' list cannot be made a ground in an election petition, while the other view is that preparation of the voters' list which includes deletion of the names in the voters' list being integral, the questions can be raised in an election petition under rule 28, the Division Bench felt that the matters need hearing by a larger Bench to settle all the disputes once and for all. Hence this group of petitions has been referred to us to answer the following questions:
I. Whether a person whose name is not included in the voters' list can avail provisions of rule 28 of the rules by filing election petition ?
II. Whether the remedy under rule 28 can be termed to be efficacious remedy ?
III. Whether a petition under Article 226 of the Constitution of India is maintainable in an election process challenging an order issued by the Election Officers i.e. inclusion or deletion of the names of the voters in the voters' list ?
25. The Division Bench of this Court in a decision rendered in the case of Kanubhai Page 11 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined Chhaganbhai Patel v. Director of Agricultural Marketing & Rural Finance, Gandhinagar and Ors. (2004 (3) GLR 2718 (supra), rightly held that the decision rendered by the Division Bench in the case of Mehsana Dist.Coop.Purchase and Sales Union Ltd. (supra) (1998 (1) GLH 170, could have referred the matter to the Larger Bench if at all while taking a different view than the view expressed in the earlier two decisions of the Division Benches. The said Division Bench, though referred to those two decisions of the earlier Division Benches but took absolute contrary view than the view expressed by the earlier two decisions. (1986 GLH 430 & 1988 (2) GLR 1060) (supra). The Apex Court in the case of Atma Ram vs State of Punjab (AIR 1959 SC 519), observed that - "where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger bench".
26. We may make it clear that by interpreting Rule 6 and 28 of the Rules, we are not enlarging the scope of the legislation or intention of the legislator nor recasting, rewriting or reframing the legislation. We are conscious of the fact that the Court has no power to legislate. Therefore, the decision rendered by the Hon'ble Apex Court in the case of State of Gujarat and Ors v. Dilipbhai Nathjibhai Patel and Ors., reported in AIR 1998 SC 1429 cited by Mr B S Patel will be of no assistance to him.
32. We have gone through the aforesaid decisions closely. There cannot be any dispute with regard to the principles laid down therein. The sum and substance of those decisions apply to a situation where this Court would like to Page 12 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined entertain a petition on the foundation that the order is ultra vires and/or without jurisdiction and/or is violating principles of natural justice. Thus, in an exceptional case, this Court can exercise the power of judicial review, which is a basic structure of the situation in such cases more particularly, in the election process. One thing is clear that this Court ordinarily would not like to exercise its power under Article 226 of the Constitution when the process of election has been set in motion even though there may be some alleged illegality or breach of rules while preparing the electoral roll.
32.1. The Supreme Court, in the case of Shri Sant Sadguru Janardan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Ors. v. State of Maharashtra and Ors (2001) 8 SCC 509, while dealing with the Maharashtra Cooperative Societies Act, held that in the process of election of the Managing Committee of a specified society where the election process having been set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was held that the proper remedy is by way of election petition before the Election Tribunal.
33. In view of the above discussion, we answer the Reference as under:
i. A person whose name is not included in the voters' list can avail benefit of provisions of Rule 28 of the Rules by filing Election Petition.
ii. As the authority under Rule 28 has wide power to cancel, confirm and amend the election and to direct to hold fresh election in Page 13 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined case the election is set aside, remedy under Rule 28 is an efficacious remedy.
iii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules."
9. In the decision in Special Civil Application No. 3922 of 2021 dated 25.02.2021, this Court has held as under:-
"2. In the light of the provisions contained in Article 243O(b) of the Constitution of India, which provides that no election to any Panchayat 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, we do not consider that it is permissible to interfere with the acceptance or rejection of the nomination papers for the ensuing municipalities election/corporation election. The election process commences from the issuance of the calender of events till the results of the election are declared. As the acceptance or rejection of the nomination is one of the stages in the process of election, the validity of it can only be challenged in election petition and not under Article 226 of the Constitution of India. There was a controversy earlier to the Page 14 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined introduction of Part IX and Article 243O of the Constitution, as to whether the principles underlying Article 329 of the Constitution could be extended to the matters relating to the elections to the various local bodies. But, ultimately now the controversy is put an end to by the introduction of the Article 243O( b) of the Constitution of India. Hence, we are of the view that the jurisdiction under Article 226 of the Constitution of India cannot be exercised as against the order of acceptance or rejection of the nomination paper or in respect of any of the stages of the election process.
3 In taking the aforesaid view, we are fortified by an order passed by a coordinate bench of this Court in the case of Parshottam Dayabhai Yadav Vs. Election Commission of India & Anrs.; Special Civil Application No.16166 of 2012; decided on 4th December, 2012. We quote the relevant observations:-
"2. The petitioner wanted to contest the election from legislative constituency No.79 - Jamnagar South. His nomination paper has been rejected and he has challenged the rejection of his nomination papers.
3. Mr.Preman Rachh, learned advocate for the petitioner has placed reliance on the Apex Court decision - Pothula Rama Rao Vs.Pendyala Venkata Krishna Rao & Ors. Reported in AIR 2007 SC 2924. On the strength of this judgment, he has urged that his nomination paper has wrongly been rejected as it was not signed by 10 proposers.
4. On the other hand, Mr.Percy Kavina, learned senior counsel assisted by Mr.Biren Vaishnav, learned advocate for the respondent No.1 has Page 15 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined urged that the remedy is not available to the petitioner, and against the rejection of nomination paper, the remedy available to the petitioner is filing a election petition. He has placed reliance on an Apex Court decision - Manda Jaganath Vs. K.S.Rathnam & Ors. Reported in AIR 2004 SC 3600.
5. We are in agreement with the view taken by the Hon'ble Apex Court in Manda Jaganath's case (supra). The proper remedy available to the petitioner is to challenge his rejection of nomination paper after the elections are over by filing election petition. This petition, therefore, is dismissed on the ground of alternative remedy of election petition.""
10. Moreover, this Court in vide its judgment dated 22.01.2025 passed in Special Civil Application No. 16727 of 2024 in a challenge made in relation to election, has held as under:-
"12. Moreover, in the decision relied upon by the petitioner of this Court in Special Civil Application No.2348 of 2024, it is held that this Court is well aware that in normal circumstances, once election program is declared, the court cannot interfere with such election process by exercising the powers under Articles 226 and 227 of the Constitution of India. However, it is not a complete bar. Applying the same principle, this Court is conscious of the fact that there is no complete bar in entertaining such petition. However, considering the fact that there is remedy available to the petitioner and in absence of any breach of fundamental rights and in breach of any mandatory rules, this court deems it Page 16 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025 NEUTRAL CITATION C/SCA/1821/2025 ORDER DATED: 13/02/2025 undefined appropriate not to entertain the present petition only on the ground that the election process has begun. In view of consideration of first issue, which is being raised by learned Assistant Government Pleader for respondent No.3- State, this Court deems it appropriate not to enter into the merits in relation to the allocation of seats. At this stage, if the prayers prayed for by the petitioner is accepted, the same would stall the entire election process."
11. Reverting to the facts of the present case, this Court cannot be ignorant of the fact that under Rule 67 of the Gujarat Municipalities (Conduct of Elections) Rules, 1994 the candidates have been declared elected unopposed and the order to that effect has been passed by the Returning Officer on 04.02.2025. The certificate dated 04.02.2025 in favour of each elected candidate as unopposed has been issued also by Returning Officer, and only publication is left.
12. Therefore, in view of the aforementioned settled legal position this Court without entering in to merits of the matter, would not like to interfere with the process of election by setting aside the impugned order dated 03.02.2025. Accordingly, the present petition is dismissed.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 17 of 17 Uploaded by SHRIJIT PILLAI(HC01400) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 21:44:13 IST 2025