Gujarat High Court
Chandanji Talaji Thakor vs State Of Gujarat on 18 January, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/632/2021 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 632 of 2021
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 632 of 2021
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CHANDANJI TALAJI THAKOR & 2 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1,2,3 for the Respondent(s) No. 1 MR DEVANG VYAS, ASG WITH MR SIDDHARTH H DAVE(5306) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 18/01/2021 CAV ORDER ORDER IN CIVIL APPLICATION Heard. In view of the averments made in the Civil Application, the applicant is permitted to be joined as party respondent no. 3 in the main writ petition. Civil Application is accordingly allowed.
ORDER IN SPECIAL CIVIL APPLICATION
1. Heard learned advocates appearing for the respective parties. With consent of learned advocates appearing for the respective parties, petition is taken up for final hearing today.
2. By way of this petition, under Article 226 of the Page 1 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER Constitution of India, petitioners - 3 in number have prayed for a writ of mandamus or a writ in the nature of mandamus or direction for quashing and setting aside the notification dated 04.01.2021 of the respondent no. 2 University for election of two members in the Executive Council to be elected from amongst the members of the Court of the University.
3. The case of the petitioners is that Section 15 of the Hemachandracharya North Gujarat University Act ('the Act' for short) provides for authorities of the University which includes the Court, the Executive Council etc. The elections to the Executive Council for two members ought not to be held as the Court constituted under Section 16 of the Act as 23 seats are vacant and 10 seats of nominated members is under dispute.
4. Mr. Hriday Buch, learned advocate for the petitioner would submit that there is no provision to publish a provisional list of voters. The Act envisages proportionate representation. He would draw the attention of the Court to Section 16 of the Act in light of the members of the University Court produced from pages 30 to 41of the petition. Relying on Section 16, Mr. Buch would submit that the Court should consist of ex-officio members and ordinary members. The present issue would be in context of the ordinary members.
In accordance with Section 16(1)(II)(a) relating to ordinary members sub-clause (iv) would provide that one member other than teachers or Secondary teachers or Head Masters of the elected faculty wise by registered graduates in each of the faculties shall be part of the Court. Two members of the Page 2 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER Gujarat Legislative Assembly would also be the members of the Court. Based on the constitution of the Court, election to the Executive Council is to be held under Section 19 of the Act where two persons are to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University affiliated colleges. Taking the Court through the list of members of the University Court, Mr. Buch would submit that no elections have been held since 2012 under Section 16(1)(II)(A) of the Act. 10 seats of registered graduates from different faculties remain vacant. There is no representation of the student community after 2017. He would therefore submit that the electorate of the Executive Council i.e. the Court from which two members of the Executive Council had to be elected are vacant to the extent of 1/3rd inasmuch as 23 member seats are vacant. 10 seats in accordance with Section 16 of Deans is seriously in dispute as the nomination of such Deans is only been done on 04.01.2001.
4.1 Mr. Buch would further submit that the term of the Executive Council is for a period of three years and is to end in March 2021 despite which elections have been declared for 2 member seats as per Section 19(1)(vii) without filling in 23 member seats of the Court and the pending dispute of the Deans.
4.2 Inviting the attention of the Court to the list of students from Sr. nos. 84 to 100, Mr. Buch would submit that these nominations to the Court are not in accordance with Section
16. He would therefore submit that the election to the Executive Council cannot be held as not only the majority of Page 3 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER the electorate which can contest for the elections of the Executive Council is vacant or no nominations have been made in the right spirit in accordance with Section 16 of the Act.
4.3 Mr. Buch would submit that the contentions of the respondents that the petitioner should take recourse to a remedy under Section 77 of the Act is also misconceived as, unlike the other statutes which expressly bar resolution of an election dispute, except by way of an election petition, such is not the case when Section 77 of the Act is read. In support of his submission, he relied on the following decisions:
(I) Bar Council of Delhi and Others vs. Surjeet Singh and Others [(1980) 4 SCC 211]. He would invite the attention of the Court to paras 10 and 11 to submit that before the Apex Court under challenge was an order by which on the facts of the case the Delhi High Court had exercised jurisdiction under Article 226 of the Constitution of India. The Bar Council had raised objections as to the maintainability of the petition and assailed the order of the Delhi High Court on the ground that wrong inclusion or exclusion in the electoral roll cannot be challenged by way of a petition. The Apex Court in the case had clearly observed that an illegal preparation of an electoral roll goes to the very root of the matter and no election can be held. A voter could therefore challenge the election and merely because he took part in the election could not estop him from doing so. He would therefore submit that when the electoral list of the Court is incomplete or flawed for election to Page 4 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER the Executive Council, a petition is the only option. (II) Chief Commissioner of Ajmer and Another vs. Radhey Shyam Dani [AIR 1957 SC 307] where an appeal was filed against an order restraining the District Magistrate from holding elections. Relying on para 12 in context of the facts in the judgement, Mr. Buch would submit that it was the essence of elections that proper electoral rolls should be maintained. Exercise of powers under Article 226 was confirmed by the Apex Court. (III) K. Venkatachalam vs. A. Swamickam and Another reported in (1995) 4 SCC 526. Reliance was placed on paras 27 and 28 thereof to submit that where there was an admitted disqualification and the petitioner had approached the Court by way of a petition under Article 226 of the Constitution of India, even though after a year of election, the Apex Court affirmed the decision of the High Court in exercising jurisdiction under Article 226 of the Constitution of India when the elected representative was admittedly disqualified. He would submit that since the majority of the electorate of the University's Court is not constituted, which is the root for the election under Section 19 to the Executive Council, writ is the only remedy.
(IV) Trivedi Mahendrabhai Mafatlal vs. State of Gujarat through Secretary, Election [2013(2) GLH
464.
5. Mr. P.K. Jani, learned Senior Advocate appeared with Mr. Shivang Jani, learned advocate for the respondent - applicant of the Civil Application for joining party who also had filed the nomination papers for the election of the Page 5 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER Executive Council. He would raise the following preliminary objections to the petition:
(a) Mr. Jani would submit that it is admitted by petitioner no.
1 that he is a member of the Legislative Assembly and is a member of the University Court as prescribed in Section 16(1) (II)(A)(i) of the Act. He therefore is on the voters' list as a member of the Court and a candidate contesting the election of the Executive Council and he therefore cannot object to the election as a part of being a nominee to contest such election. Petitioner no. 2 in the submission of Mr. Jani is a doctor. Petitioner no. 2 and petitioner no. 3 are both proposed voters to the Court. They do not fall within ordinary members as envisaged under Section 16(II)(iv) and therefore are not entitled to file the present petition.
5.1 Inviting the attention to the prayers in the petition, Mr. Jani would submit that whatever is argued inasmuch as the invalid constitution of the Court or incomplete constitution thereof is not reflected in the prayer and a mandamus is sought only to hold elections after the vacant seats of the members of the Court are filled in. There is no prayer to declare wrongful inclusion or exclusion thereof.
5.2 On merits, Mr. Jani would submit that the Executive Council is the highest decision making body which draws its electorate from the Court. It is a situation which is evident that for the past several years, the seats of the Court have never been filled in and it is only at this occasion that the petitioners have sought to challenge the election process. He would invite the attention of the Court to para 3.9 at page 11 Page 6 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER of the petition where it is an admitted fact that the petitioner intends to contest the election and he has realised that there is no proportional representation in the selection due to vacant seats of members of the Court. He therefore is admittedly participating in the elections and cannot challenge the same by way of this writ petition.
5.3 In support of his submissions, Mr. Jani relied on the following decisions:
(I) Mr. N.B Khare vs. Election Commission of India reported in AIR 1957 SC 694 (II) Reference In RE: Presidential Court (1974) 2 SCC
33.
6. Mr. Devang Vyas, learned ASG appeared with Mr. Siddharth Dave, learned advocate for the respondent no. 2 University. He raised a preliminary contention with regard to the maintainability of the petition. He invited the attention of the Court to Sections 76 and 77 of the Act. Referring to Section 76, Mr. Vyas would submit that no act or proceeding of any authority or a body of the University shall be invalidated merely by reason of any vacancy in its membership. He would draw the attention of the Court to the provisions of Section 77 and submit that where a question arises as to whether a person is entitled to be a member of any authority or a body of a University, such a question has to be referred to the State Government. Here is a case, where according to the petitioner, the constitution is flawed inasmuch as members who are entitled to be members of the Court are either not elected or some members are holding Page 7 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER such seats though they are not entitled to. This is a dispute which therefore ought to be referred to the State under Section 77 and no petition would be maintainable.
6.1 In support of his submissions, Mr. Vyas placed reliance on the following decisions:
(I) Special Civil Application No. 4614 of 2020 in the case of Pratik Kanubhai Mistry vs. Gujarat University dated 26.02.2020, wherein Section 58 and 59 of the Gujarat University Act and Sardar Patel University Act respectively were considered and the petition was held to be not maintainable.
(II) Gujarat University vs. N. Rajguru and others [1987 (Supp) SCC 512 where again Section 58 was considered and the Court held that there was no option or discretion and it was only the remedy under Section 58 that could be invoked as it was an alternative remedy available.
(III) Narhari Amin vs. Gujarat University [2013(1) GLR 430 wherein also the Court on facts took a similar view.
(IV) Shaji K. Joesph vs. V. Viswanath and others [(2016) 4 SCC 429].
(V) Bipinchandra Purushottamdas Patel vs. Sardar Patel University [(2012) SCC Online Gujarat 763.
6.2 On merits, Mr. Vyas would submit that 18 members can contest the present election including the petitioner no. 1. The petitioner no. 1 has never raised any grievance with regard to the vacant seats though he is there since the year Page 8 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER 2017. At every time many seats have remained vacant. For ex. In 2009 - 12 seats; 2017 - 17 seats; 2015 - 3 seats, 2018 - 23 seats; 2021 - 22 seats.
6.3 With regard to petitioner no. 2, Mr. Vyas would submit that he is on roll of the members of the Court since 2015 and has never raised any objection. So is the case with petitioner no. 3 who is claiming herself to be a registered graduate since 2016-17. Petitioner no. 3 however has never registered herself as a registered graduate even when she was invited in 2017. Even the petitioner no. 2 has suppressed the fact that he is serving as Assistant in GMIRS Medical College, Dharpur. The seats with regard to the nominees of the Panchayat as well as the Municipality remain vacant as it varies with the term of the elected body.
6.4 Mr. Vyas would submit that the election is in an advanced stage and this Court in exercise of discretion under Article 226 of the Constitution of India cannot interject the election process.
7. Having considered the submissions of the learned advocates appearing for the respective parties, the core controversy that is involved in the petition is the question of election of two members of the Executive Council in accordance with the provisions of Section 19(1)(vii) of the Act. The constitution of the Executive Council, a 100 member body has to be from various constituents. Two members to such council are to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University affiliated colleges, recognised Page 9 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER institutions etc. 7.1 Petitioner no. 1 admittedly is a member of the Court in accordance with provisions of Section 16(1)(II)(A)(i). It is his case in the petition as evident from pleadings in para 3.9 that despite reservations to the absence, in his perception of appropriate proportional representation, he is contesting the election. Having filled in his nomination form knowing fully well if he was of such a handicap, he only thinks it fit to object when the notification of the election is out and the election process is set in motion.
7.2 Reading of the affidavit filed on behalf of the University would indicate that the petitioner no. 1 has never raised such a grievance though he is there since 2017. The vacancy position at every time since the year 2009 the University has demonstrated that the seats of the Court have remained vacant. Even in the year 2015, three seats were vacant. I would agree with the submission of learned counsel Mr. P.K. Jani and Mr. Vyas that having opted to contest the election, the petitioner no.1 cannot turn around now to approbate and reprobate to seek postponement of the election process on account of a flawed or an incomplete proportional representation of the Court.
7.3 As far as petitioner no.2 is concerned, Mr.Buch would submit that since the petitioner no.2 is a Professor and a Doctor, he was entitled to file such a petition. What is evident from the documents placed on record as far as petitioner no.2 is concerned that he appears to be a member of the teaching staff of the college affiliated to the University. He has been on Page 10 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER the roll of the Court as a member for past six years and has never raised any objections in the past. As far as petitioner no.3 is concerned, evident from the representation so made is that she has not even got herself registered as a registered graduate and therefore does not fall within the basic qualification to be an ordinary member under Section 16(1)(II) (A)(iv) of the Act. The petition therefore at the hands of the petitioner is misconceived.
8. Even otherwise, as is evident from the discussion above, the heart of the cause of the action at the hands of the petitioners is in respect of entitlement of any member to be a part of a body of the University. That entitlement is either assailed on the ground of the non filling of vacancies on the Court by members who are entitled to be part thereof or occupation of such seats by existing members of a Court when according to the petitioners they are not qualified to hold such membership. In accordance with the decisions in the case of Narhari Amin (supra) and Rajguru (supra) that is the question that can best be decided under Section 77 of the Act. The decisions referred to Narhari Amin (supra) and Rajguru (supra) have considered Sections in context of other universities, however, being pari-materia to Section 77 of the Act.
9. Mr.Buch would have preferred this Court to exercise its jurisdiction under Article 226 of the Constitution of India by relying on the decisions in the case of Surjeet Singh and Others (supra) in an attempt to show that the election roll is completely wrong and it goes to the root of the matter. What this Court cannot ignore is that such a petition has been Page 11 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022 C/SCA/632/2021 CAV ORDER brought at the hands of the petitioner no.1 who admittedly after filing his nomination to contest the election has approached this Court by way of this petition. As far as petitioner no.2 is concerned, he is already the member of the Executive Council for the past several years and has never thought it fit to object to the vacancy position that has been consistently reflected from the affidavit in reply. Petitioner no.3 is yet to incur the qualification for being the member of the Executive Council. Keeping these factors in mind, I do not see any reason to exercise the jurisdiction or discretion in favour of the petitioners in exercise of powers under Article 226 of the Constitution of India.
10. The petition is accordingly dismissed with no order as to costs.
(BIREN VAISHNAV, J) DIVYA Page 12 of 12 Downloaded on : Wed Jan 12 01:47:37 IST 2022