Gujarat High Court
Vasimraja Sabbirbhai Malek vs State Election Commission on 16 June, 2025
NEUTRAL CITATION
C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7898 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
VASIMRAJA SABBIRBHAI MALEK
Versus
STATE ELECTION COMMISSION & ORS.
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
MS AISHVARYA(8018) for the Respondent(s) No. 1
MS SUMAN MOTLA AGP for the Respondent(s) No. 2
MR G.H.VIRK, GP with MS DHARITRI PANCHOLI, AGP for the
Respondent No.3
MR SR KESKANI for the Respondent(s) No. 4,5
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Ms.Aishvarya waives service of rule on behalf of respondent No.1, learned AGP Ms. Suman Motla waives rule on behalf of respondent No.2, learned Government Pleader Mr.G.H.Virk for respondent No.3 and learned advocate Mr.S.R.Keskani waives service of rule on behalf of respondent Nos.4 and 5.
Page 1 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined
2. This petition is filed challenging the order dated 10.06.2025 passed by Respondent No.3- Election Officer, Olpad Group Gram Panchayat, Taluka - Olpad; under which, the petitioner's nomination form after scrutiny, to contest the election for the post of Member of Ward No.12 of Olpad Group Gram Panchayat has been rejected.
3. Facts in brief as referred in the petition are as under:
3.1. It is case of the petitioner that he is resident of Olpad, District Surat and was elected in the election of Olpad Group Gram Panchayat held in the year 2022. Petitioner contested from Ward No.12 and after having been elected was discharging his duties as Member of Olpad Group Gram Panchayat honestly and diligently. Thereafter, an FIR came to be registered against petitioner on 28.04.2023 under Sections 337, 427, 143, 147, 148 and 149 of Indian Penal Code (for rioting and unlawful assembly) where he has been arrayed as accused No.29. It is case of the petitioner that for the said FIR, he is not concerned because of his noninvolvement in the alleged offence, however, the FIR came to be registered against him along with others. Pursuant to the said FIR, the petitioner was formally arrested and thereafter enlarged on bail.
Thereafter, on account of registration of FIR against the petitioner, an order dated 12.08.2024, under section 57(1) of Page 2 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined the Gujarat Panchayat Act, 1993 ("the Act, 1993" for short) was passed removing him from the Gram Panchayat as a Member (Annexure E page 38). Challenging the order, petitioner preferred appeal under Section 57(3) of the Act, 1993 and the appeal authority by an order dated 20.02.2025 (Annexure-A page 39) upheld the order passed under Section 57(1) of the Act, 1993. Special Civil Application No.3382 of 2025 is filed challenging the order under Section 57(1) of the Act, 1993 dated 12.05.2023 and order under Section 57(3) dated 20.02.2025 and the same is pending adjudication.
3.2. It is case of the petitioner that despite pendency of appeal, an order dated 10.06.2025 was passed rejecting the nomination form of the petitioner on the ground of an order passed under Section 57(1) of the Act, 1993, against the petitioner. Further, in absence of an order passed under Section 57(2) of the Act 1993, rejection of nomination form by election officer is illegal. Aggrieved by rejection of nomination, this petition is filed.
4. Heard learned advocate Mr. Zubin Bharda for the petitioner. Learned advocate submitted that in the order dated 10.06.2025, rejecting the nomination form of the petitioner, a reference is made of a communication dated 05.06.2025. Further, in the communication dated 05.06.2025 against the Page 3 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined name of the petitioner, reference of an order dated 12.08.2024 passed under Section 57(1) of the Act, removing him from post on member is made. The said communication dated 05.06.2025 is by Dy. District Development Officer. Learned advocate submitted that it is true that the petitioner was removed from the post of member of Olpad Gram Panchayat by an order dated 12.08.2024 under Section 57(1) of the Act, 1993, however, till date no order is passed under Section 57(2) of the Act, 1993 disqualifying the petitioner from the post of Member of Olpad Group Gram Panchayat. Therefore, in absence of any order, disqualifying the petitioner from the post of Member of Olpad Group Gram Panchayat, the rejection of nomination form by order dated 10.06.2025 being erroneous deserves to be quashed and set aside. Inviting attention of this Court to the proviso to Section 57(2) of the Act, 1993, learned advocate submitted that proviso to Section 57(2) of the Act 1993, refers to the time limit within which an order under Section 57(2) of the Act, 1993 shall have to be passed. If no order as referred under Section 57(2) of the Act, 1993 is passed within the time referred in the proviso, rejection of nomination form being erroneous, under order dated 10.06.2025 deserves to be quashed and set aside. In this case order under Section 57(2) of the Act is not passed within a period of 6 months disqualifying petitioner from his post of member of Gram Panchayat. Therefore, now it is not open for Page 4 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined the respondent to pass order of disqualification under Section 57(2) of the Act 1993. Learned advocate in support of his submissions, relied upon language of Section 57(2) of the Act and the proviso thereunder, to submit that in view of clear and unambiguous language of said Section and in absence of any disqualification order, the order dated 10.06.2025 being bad in law, deserves to be quashed and set aside. Further, the order removing the petitioner under Section 57(1) of the Act, 1993 and the order of appeal under Section 57(3) of the Act, 1993 are subject matter of challenge and pending adjudication before this Court and, therefore, also in absence of any confirmation of the order passed under Section 57(1) of the Act, 1993, the petitioner may be permitted to contest the election by directing the Election Officer to accept the nomination form and to permit him to participate in the upcoming election to be held on 22.06.2025.
5. Opposing the petition, learned advocate Ms.Asihwarya for respondent No.1 submitted that the order dated 10.06.2025 (Annexure I page 56) rejecting the nomination form of the petitioner is just and legal. The Learned advocate submitted that the Election Officer in the order dated 10.06.2025 has referred to the communication dated 05.06.2025 under which the names of the members who have been removed/disqualified to participate in the election has been Page 5 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined referred to. The said communication refers to Section 30 of the Act, 1993 read with Section 57(1) and 57(2) of the Act, 1993. Moreover, against the list of members whose nominations have been rejected, relevant section under which they have been either removed or disqualified has been referred. In this case, against name of the petitioner, reference of an order dated 12.08.2024 passed under Section 57(1) of the Act, 1993 is made. Therefore, the petitioner is not considered to be eligible to participate in the election basis the order passed under Section 57(1) of the Act, 1993 dated 12.08.2024. Undisputedly, the petitioner was removed from the post of Member of the Olpad Group Gram Panchayat by order dated 12.08.2024. Therefore, the reference made to Section 57(2) of the Act, 1993 is of no consequence. Learned advocate further invited attention of this Court to Section 30 of the Act, 1993 to submit that the said Section refers to disqualification, and under Section 30(1)(d), removal from post is one of such disqualification.
Further, it is not case of the petitioner that the State Government has passed an order notifying in the Official Gazette relieving him from disqualification. Therefore, the petitioner is falling under Section 30(1) (d) of the Act, 1993, and the order dated 10.06.2025 being appropriate deserves no interference. Moreover, in this case, reliance placed on Section Page 6 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined 57(2) of the Act, 1993 being misconceived deserves to be ignored.
5.1. Learned advocate further relying to Rule 15 of the Rules, 1994 submitted that, Rule 15(2) (a) of the Gujarat Panchayat Election Rules, 1994 refers to scrutiny of nomination papers. The said rules empower Returning Officer to examine the nomination papers and to permit him to decide all objection made against nominations. The returning officer may either on objection received or on his own motion after summary inquiry, if he thinks necessary is empowered to reject the nomination form. In this case, on the day of scrutiny of the nomination of the candidate, the petitioner has been disqualified for being chosen to fulfill the seat under the Act and, therefore also no interference is called for in the order dated 10.06.2025. The learned advocate further reiterated that this is a case of petitioner being removed from the post of Member of Olpad Group Gram Panchayat under Section 57(1) of the Act, 1993 and therefore the contention raised of non- passing of disqualification order under Section 57(2) of the Act, 1993 is misconceived. In support of her submission, learned advocate Ms. Aishvarya has relied upon decision dated 20.03.2009 of this court in the case of Dipakbhai Mohanbhai Patel vs. A S Patel Or His Successor in the Office & Ors. in Letters Patent Appeal No.13 of 2009 and allied matters.
Page 7 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined
6. Learned advocate Mr.S.R.Keskani for respondent Nos.4 and 5 supported the argument canvassed on behalf of respondent No.1. Learned advocate further submitted that in this case, the removal of petitioner from Member of Olpad Group Gram Panchayat is evident. The communication dated 05.06.2025 also refers to the petitioner's removal under Section 57(1) of the Act. Once the petitioner has been removed under Section 57(1) of the Act, the disqualification is consequential under Section 30(1) (d) of the Gujarat Panchayats Act, therefore, the order passed being appropriate deserves no interference. Moreover, pendency of petition challenging orders under Section 57 of the Act 1993, would not have bearing on rejection of nomination form.
7. Considered the submissions and decisions relied upon. Upon revisitation of facts, it is noticed that the petitioner has been removed from the post of member of Olpad Gram Panchayat by an order dated 12.08.2024. In the order dated 12.08.2024, a reference of FIR lodged against the petitioner has been made. The presence of petitioner at the incident has been referred. Aggrieved by the order dated 12.08.2024, under Section 57(1) of the Act, 1993, the petitioner preferred an appeal wherein, the appeal authority confirmed the order of removal under Section 57(3) of the Act, 1993 by order dated 20.02.2025. In the order dated 20.02.2025 passed under Page 8 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined Section 57(3) of the Act 1993, the petitioner's presence on the incident has been referred. The identification done of the petitioner has been referred. Undisputedly, the order under Section 57(1) dated 12.08.2024 and order under Section 57(3) dated 20.02.2025 are subject matter of challenge in pending Special Civil Application No.3382 of 2025.
8. However, Section 30 of Gujarat Panchayat Act, 1993 refers to disqualification, wherein Section 30(1)(d) reads as under:
"30. Disqualification of.-
(1) No person shall be a member of a panchayat or continue as such who-
(a) xxxxx
(b) xxxx
(c) xxxx
(d) Has been removed from any office held by him in any panchayat under any provision of this Act or in any panchayat before the commencement of this Act under the Gujarat Panchayats Act, 1961 and a period of five years has not elapsed from the date of such removal, unless he has, by an order of the State Government notified in the Official Gazette been relieved from the disqualification arising on account of such removal from office; or Sec.30(1) D Maniben Gagaji Thakore vs. State of Gujarat & Ors. 2008 (3) GLH 204."Page 9 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025
NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined
9. Thus, Clause (d) of Sub-section (1) of Section 30 provides that no person shall be Member of Panchayat or continue as such who has been removed from the office held by him in any Panchayat under any provision of this Act. In this case, admittedly, the petitioner has been removed from the office held by him by order dated 12.08.2024 under 57(1) of the Act, 1993. This aspect has been recorded in the communication dated 05.06.2025 and in the list of candidates whose nomination forms have been rejected, against the petitioner's name order dated 12.08.2024 passed under Section 57(1) of the Act 1993 has been referred. Moreover, Rule 15 of the Gujarat Panchayat Election Rules refers to suo-moto powers assigned to the Returning Officer. Under sub-rule (2) of Rule 15, the Returning Officer either on an objection received or on his own motion after summary inquiry shall examine nomination paper and reject the same if on the day fixed for scrutiny of nominations, the candidate is either not qualified or disqualified for being chosen to fill-up the seat under the Act. In this case, the Returning Officer basis the communication dated 05.06.2025 has decided that the petitioner is not qualified to fill the seat under the Act and, therefore, the order dated 10.06.2025 was passed.
10. Moreover, in the decision, relied upon by learned advocate Ms. Aishvarya for respondent No.1 in the case of Page 10 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined Dipakbhai Mohanbhai Patel vs. A S Patel Or His Successor in the Office & Ors., while interpreting Section 30 which refers to disqualification, this Court held as under:
"17. On an analysis of the above provisions, the following aspects emerge :-
(1) The powers under Sections 57(1) and 253(1) can be exercised where the members of the Panchayat or the Panchayat are found abusing their powers or making persistent default in the performance of their duties and functions under the Act. In this sense, the powers are overlapping and not placed in separate water tight compartments.
(2) The power to take action under Section 57(1) is conferred on the District Development Officer and the appeal under Section 57(3) against such orders lies before the State Government. As per the statutory delegation order under Section 271(1), the said appellate power is delegated to the Additional Development Commissioner.
On the other hand, the power under Section 253 is conferred on the State government which, as per the same statutory order, is delegated to the Development Commissioner.
(3) In both the cases, where the members are removed under Section 57 or the Gram Panchayat is dissolved or superseded under Section 253, the persons who get elected hold office only for the remainder of the term of the members who are removed or remainder of the term of the Gram Panchayat, which is dissolved or superseded.
(4) As per the provisions of Section 30(1)(d) of the Act, Sarpanch/Upa-Sarpanch/ members who are removed under Section 57(1) are visited with the Page 11 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025 NEUTRAL CITATION C/SCA/7898/2025 JUDGMENT DATED: 16/06/2025 undefined consequence of automatic disqualification for a period of five years from the date of removal, unless the State Government relieves him/ them from such disqualification.
On the other hand, when the Gram panchayat is dissolved or superseded and when elections are held for re-constituting the Gram Panchayat, the members of the body so dissolved or superseded are eligible for re-election."
11. Thus, in view of order passed under Section 57(1) of the Act, 1993 removing the petitioner from the post of Member of Olpad Gram Panchayat for which, 05 years has not been completed, read with Section 30(1)(d) of the Act 1993, this Court could not find any error in the order dated 10.06.2025 rejecting the nomination form of the petitioner to contest the election for the post of Member of Olpad Group Gram Panchayat.
12. With this, the present petition is disposed of. Rule is discharged.
(MAUNA M. BHATT,J) NAIR SMITA V./01 Page 12 of 12 Uploaded by NAIR SMITA V.(HC00186) on Thu Jun 19 2025 Downloaded on : Thu Jun 19 21:41:07 IST 2025