Gujarat High Court
Somabhai vs Election on 24 June, 2008
Author: Jayant Patel
Bench: Jayant Patel, Akil Kureshi
SCA/8429/2008 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8429 of 2008 ========================================================= SOMABHAI GODADBHAI PATEL - Petitioner(s) Versus ELECTION OFFICER AND DISTRICT REGISTRAR - Respondent(s) ========================================================= Appearance : MR SP MAJMUDAR for Petitioner(s) : 1, None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE AKIL KURESHI Date : 24/06/2008 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Draft amendment granted.
We have heard Mr.Jani appearing with Mr. Majmudar for the petitioner and Mr.Tushar Mehta appearing by caveat for respondent No.2 who objected to the acceptance of the nomination form for election before the Election Officer, on the aspects of admission and for interim order.
Prima facie it appears that the ground which is made as the basis by the Election Officer for rejection of the Nomination Form is the subject matter of pending Appeal before the District Court for recovery of the amount by the Market Committee against the petitioner. Such ground is not provided under the Gujarat Agricultural Produce Market Committee Act and/or the relevant Rules. Therefore, it prima facie appears that the basis of rejection of the nomination paper is ultra vires to the power of the Election Officer and in normal circumstances, it can be said as an exceptional case for exercise of the power under Article 226 of the Constitution.
Mr.Mehta, learned counsel appearing for the respondent No.2 resisted the petition on two grounds; one was that this being the election matter the Court may not interfere with and he relied upon the decision of the Division Bench of this Court in the case of Kanubhai Chhaganbhai Patel Vs. Director of Agricultural Marketing & Rural Finance, Gandhinagar & Ors. reported at 2004(3) GLR 2718. However, he does not dispute the position that the said decision is subsequently considered by the Full Bench of this Court in the case of Daheda Group Seva Sahakari Mandli Ltd. Vs. R.D.Rohit, Autorised Officer & Co.Op. Officer (Marketing) reported at 2006(1)GCD 211(Guj)[FB]. But in the contention of Mr. Mehta, the view of the Division Bench is further agreed by the Full Bench. In the very decision of the Full Bench in the case of Daheda Group Seva Sahakari (supra), the concluding observations for answering the question of reference at para 33 (iii) reads as under:
ýSiii. Even though a petition under Article 226 of the Constitution of India is maintainable though alternative remedy is available, the powers are to be exercised in case of extraordinary or special circumstances such as where the order is ultra vires or nullity and/or ex facie without jurisdiction. The exclusion or inclusion of names in the voters' list cannot be termed as extraordinary circumstances warranting interference by this Court under Article 226 of the Constitution of India and such questions are to be decided in an Election Petition under Rule 28 of the Rules.ýý (Emphasis supplied) Therefore, as earlier observed, the present being the case of exercise of the power which is ultra vires to the power of the Election Officer, even as per the view taken by the Full Bench, the petition can be entertained and therefore, the said contention of Mr. Mehta prima facie cannot be accepted.
The second ground on which Mr.Mehta resisted the petition and the grant of interim, is that this Court may not exercise the discretion in favour of the petitioner who has the monetary liability to pay the amount of foreign trip to the Market Committee.
Prima facie examination of the said contention shows that the Suits were filed by the Market Committee for recovery of such amount and the said Suits as per the Judgement of the Civil Court are dismissed on 16.05.2008. During the period of earlier election, the Suits were pending and therefore, same position will not continue after dismissal of such Suits at the end of the Trial. It is true that the appeals are preferred but merely because the appeals are preferred or admitted, it cannot be said that the effect of the Judgement of the Civil Court would totally stand reversed. In any event, the Suit amount were in total for Rs.4,66,766/- and therefore, with a view to balance the rights and so as to ensure that no undue benefit is extracted by the petitioner who is the facing the appeal, the reasonable condition can be imposed of depositing 50% of the Suit amount, subject to the outcome of the appeal.
In any event, the Court may be required to examine the question further only if the petitioner succeeds at the election but if the petitioner loses at the election, such aspects may be rendered academic in future. Further, nobody appears on behalf of the Election Officer at this stage and the matter can be considered at the later stage if it is so demonstrated that the interim relief deserves to be modified or vacated.
Hence, Notice returnable on 07.07.2008.
By ad interim order, the operation of the decision of the Election Officer dated 20.06.2008 (Annexure-G) shall remain stayed on the condition that the petitioner deposits the amount of Rs.2,35,000/- with the Market Committee on or before 26.06.2008 subject the outcome of the Appeal pending before the District Court and further orders in the present case. It is clarified that as a consequence of the same, the petitioner may be entitled to contest the election. The stages of the election are not disturbed. The result, if any declared, of the election, shall be subject to the further orders of this Court. The report shall be made on 07.07.2008 by the Election Officer of the outcome of the election.
The learned counsel for the petitioner shall be at the liberty to communicate the order by fax as well as by other mode of communication to the Election Officer.
(JAYANT PATEL, J.) (AKIL KURESHI, J.) *bjoy