Gujarat High Court
Mukesh Nagarbhai Patel vs State Of Gujarat on 16 December, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18812/2021 ORDER DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18812 of 2021
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MUKESH NAGARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR APURVA A DAVE(3777) for the Petitioner(s) No. 1
Ms. Jyoti Bhatt, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Heard Mr. Apurva Dave, learned counsel for the petitioner,, Ms. Jyoti Bhatt, learned Assistant Government Pleader for the respondent State 2.0. By this petition under Article 226 of the Constitution of India, the petitioner has prayed as under:
"A. Admit and allow this petition:
B. To quash and set aside the impugned notification dated 13.07.2021 issued by the Collector, Valsad which is at Annexure A and thereby be pleased to direct the respondent authorities to declare new notification for the post of Sarpanch in the reserved category of SEBC so that as per the rotation system, SEBC candidate will also get a chance to contest the election;ion;
3.0. The Notification for election to the election of Kalsar Village Gram Panchayat is already published and various Page 1 of 4 Downloaded on : Wed Jan 12 11:05:33 IST 2022 C/SCA/18812/2021 ORDER DATED: 16/12/2021 stages have already commenced and hence, election is well under way. The actual voting is scheduled on 19.12.2021.
4.0. The Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit vs. Gujarat State Election Commission reported in 2021(2) GLH 281, following the judgment of the Hon'ble Supreme Court in the case of Anugrah Narain Singh and Another vs. State of UP and Ors reported in 1996(6) SCC 303, has observed thus:
"75. Our aforesaid discussion may be summarised as under :
(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 Page 2 of 4 Downloaded on : Wed Jan 12 11:05:33 IST 2022 C/SCA/18812/2021 ORDER DATED: 16/12/2021 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 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."
5.0. As stated above, as the election is well under way and as there is alternative remedy available to the petitioner, we deem it fit not to exercise our jurisdiction under Article 226 of the Constitution of India. However, it is made clear that all the questions are kept open and the same shall be dealt with by the authority in accordance with law and without in any way being influenced by the present order. Present Page 3 of 4 Downloaded on : Wed Jan 12 11:05:33 IST 2022 C/SCA/18812/2021 ORDER DATED: 16/12/2021 petition fails and is hereby dismissed.
(R.M.CHHAYA,J) (MAUNA M. BHATT,J) KAUSHIK J. RATHOD Page 4 of 4 Downloaded on : Wed Jan 12 11:05:33 IST 2022