Gujarat High Court
Mahendrasinh Lakhubha Jadeja vs State Of Gujarat & 5 on 23 September, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14344/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14344 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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MAHENDRASINH LAKHUBHA JADEJA....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR KIRTIDEV R DAVE, ADVOCATE for the Petitioner(s) No. 1
MR BHARGAV PANDYA, AGP for the Respondent(s) No. 1 , 3 , 6
MR SAURABH G AMIN, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 5
UNSERVED-REFUSED (N) for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/09/2016
ORAL JUDGMENT
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HC-NIC Page 1 of 7 Created On Sat Sep 24 01:57:03 IST 2016 C/SCA/14344/2016 JUDGMENT The election officer, Kutch District Central Cooperative Bank & Deputy Collector, Bhuj, by his order dated 09th August, 2016 held that the petitioner herein was not qualified to be a voter in the elections to the Bank, resultantly ordered deletion of his name from the list of voters. Aggrieved by the said order, petitioner has invoked writ jurisdiction of this Court.
2. It is the case of the petitioner that he is elected member of the fifth respondent society-Faradi Seva Sahakari Mandli. In the election to the second respondent Bank, his name was proposed by the society as representative to be a voter by passing Resolution dated 02nd July, 2016. The petitioner was treated not eligible as per the impugned order. It appears that along with the petitioner, the fourth private respondent herein also was similarly treated not entitled to vote and his name also was ordered to be take out from the list of voters.
3. The programme for the election to the Managing Committee was announced by the election officer. Thereunder the last date for filing nomination forms was 07th September, 2016, publication of nomination forms were scheduled to take place on the same day in the afternoon. The scrutiny was fixed to take place on 08th September, 2016. The same was the date for publication of the validly nominated candidates. The date of withdrawal was slated to 13th September, 2016, whereas the final list of the contesting candidates was to be made on 14th September, Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Sep 24 01:57:03 IST 2016 C/SCA/14344/2016 JUDGMENT 2016 and the same was published. The date of voting is scheduled to take place on 25th September, 2016 and the counting is proposed to be held on 26th September, 2016. The process of election is underway negotiating its final stage.
4. Learned advocate for the petitioner Mr.Kirtidev Dave assailed vehemently the impugned order, and in particular the ground on which the petitioner was held not entitled to be a voter. As the order reflects, it was on the ground that the petitioner was not working for minimum period of one year in the executive committee of the representative society, that the petitioner's voting right is denied. Learned advocate for the petitioner submitted that there was no such rule and that the decision of the election officer is, therefore, palpably erroneous.
4.1 On the other hand, learned advocate Mr.Saurabh Amin for the second respondent submitted that such could be a valid ground to deny voting right and thus he could defend the order of the election officer.
5. On consideration of the controversy and the stage obtained, it was deemed not necessary by the Court to go into the merit part of the impugned order or the justification or otherwise of the ground of the order of the election officer. The important and weighing ground exists because of which the petition cannot be entertained.
5.1 It is trite that writ court would not
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interfere once the election process is underway. This dictum, well-settled by caravan of decisions of the Supreme Court as well as by this Court, is true whether it is elections to local body or elections of any democratic domestic body such as cooperative society. It is also well-settled that all election disputes relating to alleged irregularities or illegalities in course of the election have to be postponed for their solution, to be tried and settled after the elections are over in accordance with the machinery provided for resolution of such disputes.
5.2 The proposition that Court would not interfere or interpose itself once the election process is started is stated and reiterated in several decisions including the decision of Full Bench of this Court in case of Daheda Group Seva Sahakari Mandli Limited Vs R.D. Doshit [2006(1) GCD 211], wherein the Court even while holding that only in exceptional circumstances the Court may be inclined to interfere with the election process, in terms held that inclusion or exclusion from the list of voters are not exceptional circumstance which would justify interference of the Court in the midst of the election.
5.3 In Rajeshbhai Vaghjibhai Chaudhari Vs State of Gujarat being Special Civil Application No.8041 of 2016 decided by this Court reiterating the principle came to be confirmed in Letters Patent Appeal No.538 of 2016 in which, after discussing the powers of the Court, the Division Bench observed to state as under.
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"Keeping in mind the aforesaid legal position with regard to exercising powers under Article 226 of the Constitution of India in the election matters, if the facts of the present case are considered, it is revealed that the Authorized Officer has rejected the objections raised by the petitioners about inclusion of the names of petitioner Nos. 6 to 101 in the voters list. In the facts of the present case when a new market committee is constituted in September 2014 and thereafter the licences were issued to the concerned traders, we are prima facie of the opinion that Authorized Officer has not committed any jurisdictional error or order of the Authorized Officer cannot be said to be ultra vires or nullity nor the same can be termed as arbitrary. Thus, in the facts of the present case, the learned Single Judge is right in not exercising the jurisdiction under Article 226 of the Constitution and by observing that the petitioners can file an Election Petition under Rule 28 of the rules. We are in agreement with the reasoning given by the learned Single Judge and therefore the present appeal is devoid of any merits and accordingly it is dismissed." (Para 15) "However, we leave it open to the appellants that if the appellants petitioners are aggrieved by the result of election, they can approach the competent authority by raising en election dispute as contemplated under Rule 28 of the Rules. If such petition is filed, it shall be considered by the competent authority independently and uninfluenced by the prima facie findings recorded by this Court in this appeal."
(para 16) 5.4 As far as the present case is concerned, Section 145-U of the Gujarat Cooperative Societies Act, 1961 offers such post-election remedy to the petitioner which the petitioner can avail.
5.5 The well-settled proposition that the Court should not interfere with the election process and the remedy could be availed only after the elections are over, has been holding the field right from the decision in N.P. Ponnuswami Vs Returning Officer [AIR 1952 SC 64] and caravan of other decisions, of which a more recent decision in Shaji K. Joseph Vs V. Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Sep 24 01:57:03 IST 2016 C/SCA/14344/2016 JUDGMENT Viswanath [(2016) 4 SCC 429] may be referred to, which reiterated the principle in the following words.
"... 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 whenever the process of election starts, normally courts should not interfere with he 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 the 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 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. ... ... "
(Para 15)
6. Learned advocate for the petitioner wanted to contend that remedy of filing election petition under Section 145-U of the Gujarat Cooperative Societies Act, 1961 may not be available to him in asmuch as he cannot be treated as aggrieved party. This contention is stated to be rejected in asmuch as the provision mentioned that any disputes relating to election which is to be referred to the Tribunal in accordance with sub-section (2). Whether a person is entitled to vote or not and whether his name should be figuring in the list of voters or not is indeed election dispute falling within the purview of Section 145-U. The contention that the petitioner would not be aggrieved party if difference of vote is more that one, is preposterous and cannot help the petitioner to maintain the petition, as no such eventuality has arisen at this stage. This aspect relates to the Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Sep 24 01:57:03 IST 2016 C/SCA/14344/2016 JUDGMENT outcome of the election with which the present controversy or relief sought have no concern. The petitioner may avail post-election remedy rather than urging it as the ground for pressing the prayer in this petition to be included in the list of voters. The petitioner's place in voters' list having been denied and his name is deleted holding him ineligible by election officer, the petitioner does become 'aggrieved person' for the purpose of availing remedy under Section 145-U of the Act.
6.1 It was submitted further in the context of the above submission that right to vote has been denied if there is claim for exercising right to vote is also not maintained in asmuch as right to vote is neither a fundamental right nor common law right. It is statutory right exercisable in accordance of governing statutory provisions. As the right to vote has to be exercised within four corners of law, its enforcement is also to be sought and can be permitted in accordance with what is provided in law. In the present case, machinery of election petition under Section 145-U of the Act is provided after the elections are over.
7. For the aforesaid reasons, there is no merit in the petition. Hence dismissed. Notice stands discharged.
(N.V.ANJARIA, J.) Anup Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Sep 24 01:57:03 IST 2016