Gujarat High Court
Amisha Chirag Shah vs State Of Gujarat & on 2 May, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
AMISHA CHIRAG SHAH....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/8177/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8177 of 2013 ================================================================ AMISHA CHIRAG SHAH....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ================================================================ Appearance: MR ASIM PANDYA for HL PATEL ADVOCATES, ADVOCATE for the Petitioner(s) No. 1 MR PK JANI GOVERNMENT PLEADER for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 02/05/2013 ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) Rule returnable one week after reopening.
After hearing Mr Pandya appearing on behalf of the petitioner and Mr Jani, the learned Government Pleader appearing on behalf of the State-respondent and after going through the materials on record, we find that the petitioner has made out a strong prima facie case to have an interim order staying the operation of the Gujarat Municipalities (Reservation of SC, ST, BC and Women for the office of the President) 2nd Amendment Rules, 2013 so far Godhra Municipality is concerned for the following reasons :-
(a) After the amendment of 2013 Rules, at present Schedule 8 as it stands does not provide for any reservation of any SC, ST, BC or Women category and is extended only to general category.
(b) We are not impressed by the explanation given in the affidavit that in expectation of the publication of 2011 census, the State Government has decided not to publish the full roster for the time being because, according to the law as it stands, the roster must be published on the basis of population indicated in the last census published, which in the present instance is 2001 census and there is no necessity of waiting for the publication of the future census.
(c) We are also not impressed by the submission of Mr Jani as regards application of Article 243ZG(b) in view of the fact that the election in question does not refer to election to the Municipality but it is election for the post of President of the Municipality. As pointed out in Section 2(7A) of the Gujarat Municipalities Act, 1963 election means and includes the entire election process commencing from the division of wards and all stages culminating into election of a councillor and it is always deemed to have meant and included in the election process as aforesaid. In the case before us, the petitioner is already elected as a councillor and the election in question has nothing to do with the process commencing from division of wards and all stages culminating into election of a councillor.
(d) Moreover, we are also fortified by a decision of a three-judge- bench of the Supreme Court in the case of Election Commission of India vs. Ashok Kumar reported in 2000 (8) SCC 216 where the Supreme Court in paragraph 32 (2) and ((3) has made the following observations :-
(2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
We, accordingly, pass interim order staying the operation of Gujarat Municipalities (Reservation of SC, ST, BC and Women for the office of the President) 2nd Amendment Rules, 2013 published vide notification dated April 26, 2013 in relation to Godhra Municipality till the disposal of this writ-application.
Direct service is permitted today.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) zgs Page 4 of 4