Dimpal Devendrabhai Pandya W/O Late ... vs State Election Commission on 11 January, 2022

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Gujarat High Court

Dimpal Devendrabhai Pandya W/O Late ... vs State Election Commission on 11 January, 2022

Bench: R.M.Chhaya

     C/SCA/299/2022                                   ORDER DATED: 11/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 299 of 2022

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DIMPAL DEVENDRABHAI PANDYA W/O LATE DEVENDRABHAI PANDYA
                         Versus
               STATE ELECTION COMMISSION
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Appearance:
RAHUL SHARMA(8276) for the Petitioner(s) No. 1
SUBODHKANT B PARMAR(10133) for the Petitioner(s) No. 1
MS ROOPAL PATEL for the Respondent(s) No. 1
for the Respondent(s) No. 2,3,4
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                                Date : 11/01/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. Heard learned advocates appearing for the respective parties.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following main reliefs:-

"B) Issue a writ of mandamus or any other woo to quash and set aside the entire elections from the stage of and including the stage of polling, for the election of the Sarpanch, Ode Gram Panchayat, Taluka Daskroi, District Ahmedabad, voting for which was held on 19.12.2021 and couting for which was held on 21.12.2021 and further direct respondent no.1 to conduct fresh elections from the stage of polling within one month of Page 1 of 5 Downloaded on : Wed Jan 12 20:55:18 IST 2022 C/SCA/299/2022 ORDER DATED: 11/01/2022 the disposal of this petition;

C) Pending the disposal of this petition, stay the result of the election declared on 21.12.2021, of the Sarpanch, Ode Gram Panchayat, Taluka Daskroi, District Ahmedabad, polling for which was held on 19.12.2021;"

3. It is submitted that the elections were held on 19.12.2021 and the election programme is as under:-

Election Programme Sr. Details Date No. 1 Date of declaration of 22.11.2021 election 2 Date of declaration of 29.11.2021 election notices/notifications 3 Last date for filing the 04.12.2021 nomination forms 4 Date for verification of the 06.12.2021 nomination forms 5 Last date for withdrawing the 07.12.2021 nomination forms 6 Date of Election 19.12.2021 (Sunday) (From 07:00 a.m. to 06:00 p.m.) 7 Date of re-election (if 20.12.2021 required) 8 Date of counting the votes 21.12.2021 9 Date of completion of election 24.12.2021 process Page 2 of 5 Downloaded on : Wed Jan 12 20:55:18 IST 2022 C/SCA/299/2022 ORDER DATED: 11/01/2022

4. The Hon'ble Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit v. Gujarat State Election Commission, reported in 2021 (2) GLH 281 has observed thus:-

"75. Our aforesaid discussion may be summarised as under :

(1) Article 243-O of the Constitution of India does not per se bar judicial review, which is part of the basic structure of the Constitution, although such jurisdiction should not ordinarily be exercised. There is a difference between 'power of judicial review' and 'judicial power'. The 'power of judicial review' is specially conferred on the Constitutional Courts, i.e. the High Courts and the Supreme Court, under Articles 226 and 32 of the Constitution, respectively.

(2) It is settled principle that where there is an effective alternative remedy under the statute, the High Court should not exercise its jurisdiction as a self-

imposed restriction. In electoral matters, the High Court observes self- impose limitations and declines to interfere with the election process when once the election notification is issued. But, where the constitutional validity of an Act or a Rule or provision of an Act affecting the election is challenged, or where an error in exercising such jurisdiction or malafides or non-compliance of rules of natural justice is established, the High Court has got ample power to render justice by exercising the power of judicial review conferred on it under Article 226 of the Constitution of Page 3 of 5 Downloaded on : Wed Jan 12 20:55:18 IST 2022 C/SCA/299/2022 ORDER DATED: 11/01/2022 India.

(3) The bar of interference by 'courts' in electoral matters should be understood as the bar against the ordinary courts and not against the Constitutional Courts, and it cannot be said that the Parliament intended to take away the power of judicial review of the Constitutional Courts by incorporating Article 243-O of the Constitution. If Article 243-O of the Constitution has to be construed so as to bar the jurisdiction of the Constitutional Courts, i.e. the High Courts and the Supreme Court, the same will be against the basic structure or the basic feature of the Constitution, and accordingly, it is void.

(4) The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest an election for an office in Panchayat may be said to be a constitutional right - a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. The State which is vested with the power to implement the constitutional mandate of reservation and rotation and has put in place a legislative and executive measure to implement the mandate cannot be found to have objected judicial review so as to interfere the mandate under law and to ensure that the elections are not only conducted within the time prescribed but also in the manner as mandated under law.

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C/SCA/299/2022 ORDER DATED: 11/01/2022 (5) The High Court should not intervene even when the elections are imminent. In other words, the election is well underway."

5. Considering the ratio laid down by the Apex Court in the case of Anugrah Narain Singh and another vs. State of U.P. and others, reported in (1996) 6 SCC 303 and Division Bench of this Court in the case of Dineshbhai Chhaganbhai Gamit (supra), we deem it fit not to exercise jurisdiction.

6. As stated above, the election is over and the prayers prayed for cannot now be considered in exercise of our jurisdiction under Article 226 of the Constitution of India. However, it would be open for the petitioner to pursue his grievance before the State Election Commission.

7. The petition is, therefore, not entertained and is dismissed accordingly. However, there shall be no order as to costs. Direct service is permitted.

(R.M.CHHAYA,J) (NIRAL R. MEHTA,J) Maulik Page 5 of 5 Downloaded on : Wed Jan 12 20:55:18 IST 2022

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