Gujarat High Court
Chaudhary Ishwarbhai Gokalbhai vs State Election Commission & 3 on 29 March, 2017
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/6515/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6515 of 2017
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CHAUDHARY ISHWARBHAI GOKALBHAI....Petitioner(s)
Versus
STATE ELECTION COMMISSION & 3....Respondent(s)
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Appearance:
MR VC VAGHELA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 29/03/2017
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.3.2017 passed by the third respondent Election Officer rejecting the nomination of the petitioner and prays that it may be held that the nomination of the petitioner is valid and accordingly the petitioner be permitted to contest the election from Ward No.7 of village Mandal of Dhanera Taluka of Banaskantha District.
2. The facts stated briefly are that the petitioner herein filed his nomination for the election of member of Mandal Gram Panchayat. The nominations were to be filed on 18.3.2017 and Page 1 of 4 HC-NIC Page 1 of 4 Created On Tue Aug 15 13:08:19 IST 2017 C/SCA/6515/2017 ORDER the scrutiny was to be carried out on 24.3.2017 and voting is scheduled to be held on 8.4.2017. On 24.3.2017, the petitioner's father gave an application to the Election Officer objecting to his nomination on the ground that the petitioner resides in a joint family with him and that they have no water closet in the house and that the certificate issued by the Talati- cum-Mantri is false and is thereby requested that the nomination of the petitioner be rejected. In response to the objection, the petitioner gave a written reply stating that his father had filed the objection under pressure and the allegations made therein are incorrect. The Election Officer, however, placing reliance upon the affidavit of the petitioner's father has rejected the nomination of the petitioner and declared the fourth respondent as having been elected uncontested, which has given rise to the present petition.
3. Mr. V. C. Vaghela, learned advocate for the petitioner has submitted that the petitioner's father was threatened by the respondent No.4 and that buckling under such pressure, the petitioner's father had moved an application objecting to the petitioner's nomination on a totally false ground. It was submitted that the petitioner herein has as many as three ancestral homes, all of which have water closets and that the Talati-cum-Mantri, Mandal, after due verification, had issued a certificate in favour of the petitioner certifying that he had a water closet in his house. It was submitted that under the circumstances, the rejection of the nomination of the petitioner being bad in law is required to be set aside and the respondent No.3 Election Officer be directed to accept the nomination of the petitioner.
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4. A perusal of the record of the case reveals that initially, it was the petitioner's father who had moved an application objecting to the petitioner's nomination on the ground that they do not have a water closet in their house and that the concerned Talati-cum-Mantri had given a false certificate. However, thereafter on 25.3.2017, the petitioner's father has made an affidavit stating that he had filed the application and the affidavit therewith under pressure. A perusal of the record of the case also reveals that the concerned Talati-cum-Mantri had, at the relevant time, issued a certificate in favour of the petitioner certifying that there was a water closet in the house. Therefore, conflicting certificates have been brought on record, which fall within the realm of disputed questions of fact and this court in exercise of powers under Article 226 of the Constitution would not embark upon any inquiry into disputed questions of fact. Besides, after rejection of the nomination of the petitioner, the fourth respondent has already been declared elected uncontested. Therefore, even otherwise, this court would not be in a position to grant any relief to the petitioner, inasmuch as, it is not permissible for the court to set aside the election of the fourth respondent, which can be challenged only by way of an election petition under section 31 of the Gujarat Panchayats Act, 1993.
5. In the light of the above discussion, this court is not inclined to entertain the petition, leaving it open for the petitioner to move appropriate application challenging the election of the fourth respondent. The petition, therefore, fails and is, accordingly, dismissed.
6. It is clarified that this court has not expressed any Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Aug 15 13:08:19 IST 2017 C/SCA/6515/2017 ORDER opinion on the merits of the controversy and that in case the petitioner files an election petition, the same shall be decided in accordance with law without in any manner being influenced by any observations made in this order.
(HARSHA DEVANI, J.) (A. S. SUPEHIA, J.) zgs Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Aug 15 13:08:19 IST 2017