Gujarat High Court
Dharmendra Nathalal Shah & vs Hemchandracharya North Gujarat ... on 16 June, 2014
Author: Jayant Patel
Bench: Jayant Patel, Z.K.Saiyed
C/SCA/7386/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7386 of 2014
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DHARMENDRA NATHALAL SHAH & 1....Petitioner(s)
Versus
HEMCHANDRACHARYA NORTH GUJARAT UNIVERSITY &
1....Respondent(s)
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Appearance:
MR DG SHUKLA, ADVOCATE for the Petitioner(s) No. 1 - 2
MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 16/06/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) Draft amendment is granted.
1. The petitioners have approached this Court for the appropriate writ to direct the respondent No.1 - University to conduct the election of one of the members as University representative to the Dental Council of India and it was prayed that the communication dated 24.4.2014 issued by the University (at Annexure - A) for the election program be quashed and set aside.
2. We have heard Mr. Shukla, learned Counsel for the petitioners and Mr. Siddharth Dave, learned Counsel for the respondent No.1.
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3. It may be recorded that this matter was moved before the learned Vacation Judge and on 21.5.2014, learned Vacation Judge found that there was no urgency, as the election was completed, the matter was adjourned to 16.6.2014 i.e. today.
4. By the today's draft amendment, the petitioners are proposing to join Dental Council of India and one Mr. Uday Mohanlal Patel, who has been elected at the said election and further prayer is proposed to be added for challenging the notification dated 20.5.2014 for declaring the proposed respondent No.4 Uday Mohanlal Patel as uncontested.
5. As such, the main petition was preferred at a stage when the election was to be held, as per the petitioners, but the fact remains that when the learned Vacation Judge considered the matter on 21.5.2014 the election was already held and thereafter the petitioners are now challenging the declaration of the result of the election.
6. Mr. Shukla, learned Counsel appearing for the petitioners, raised two contentions. One was that the election has not been held in accordance with the provision of Section 3(d) of the Dentists Act, 1948, and the second was that the person who has been elected is not the member of dental faculty of the University or not a member of the medical faculty of the University.
7. Whereas, Mr. Dave, learned Counsel for the University, raised the preliminary contention that as per Section 77 of the Hemchandracharya North Gujarat University Act, 1986 Page 2 of 4 SPECIAL CIVIL APPLICATION/7386/2014 19/10/2014 09:12:42 AM C/SCA/7386/2014 ORDER (for short "the University Act"), the dispute pertaining to the election of a member of the University to be represented and the dental council can be examined by the State Government and, therefore, the petitioners have alternative efficacious remedy available with them, which has not been resorted and, therefore, this Court may not entertain the petition challenging the legality and validity of the election.
8. In our view, if the petitioners are seeking to challenge the election of a member to be represented in Dental Council,.as per Section 77 of the University Act, such question would be required to be referred to the State Government and such remedy is available to the petitioners. It is hardly required to be stated that when any election is challenged under Article 226 of the Constitution, the Court may entertain the petition prior to holding of the election if this Court finds that any mandatory provision has not been followed or the whole election is being vitiated. But, if the election is over and thereafter this Court is to examine the matter, the Court would by way of self imposed restriction relegate the party to the Election Tribunal or the Authority which has power to examine the legality and validity of the election as per respective statutory provision and the reasons being that rights flowing from the election are statutory rights and the electorate has the right subject to the provision of the statute and the dispute pertaining thereto are also to be adjudicated in the manner provided by the statute. It is an admitted position that the election is over and, therefore, by way of a self restriction it would be appropriate not to entertain the petition and if the petitioners are so advised they may challenge the legality and validity of election by resorting to Page 3 of 4 SPECIAL CIVIL APPLICATION/7386/2014 19/10/2014 09:12:42 AM C/SCA/7386/2014 ORDER the remedy as provided under Section 77 of the University Act.
9. On the aspect of challenging the appointment of proposed respondent No.4, who has been declared as elected, if as per the petitioners, the person is not holding requisite qualification he may resort to other remedy against his appointment on the principles of writ of quo-warranto without there being any challenge to the election. No such prayer has been made in the present proceeding.
10. In view of the above, subject to the aforesaid observation, the present petition is not entertained and disposed of accordingly. However, it is observed that if any of the remedy as resorted by the petitioners, the right and contention of both the sides, including the person so elected, shall remain opened.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) SAS Page 4 of 4 SPECIAL CIVIL APPLICATION/7386/2014 19/10/2014 09:12:42 AM