Gujarat High Court
Parmar Arvindbhai Raijibhai vs State Election Commission, State ... on 14 December, 2021
Bench: R.M.Chhaya
C/SCA/17666/2021 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17666 of 2021
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PARMAR ARVINDBHAI RAIJIBHAI
Versus
STATE ELECTION COMMISSION, STATE OF GUJARAT
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Appearance:
MR AJ YAGNIK(1372) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,
30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50
,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,7
1,72,73,74,75,76,77,78,79,8,80,81,82,83,9
. for the Respondent(s) No. 1,2,3
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 1
Ms. Jyoti Bhatt, AGP for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 14/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Heard Mr. A J Yagnik, learned counsel for the
petitioners, Ms. Roopal Patel, learned counsel for the
respondent no.1 and Ms. Jyoti Bhatt, learned Assistant
Government Pleader for the respondent nos. 2 and 3.
2.0. By this petition under Article 226 of the Constitution
of India, the petitioners have prayed as under:
"A. Be pleased to direct the respondents to include the
name of the petitioners in the voters list of village Jolva,
Tal: Vagra, Dist. Bharuch before 4.12.2021 and be further
pleased to direct respondents to ensure that the
petitioners are permitted to vote and contest election for
the Gram Panchayat and Sarpanch subject to
C/SCA/17666/2021 ORDER DATED: 14/12/2021
qualifications and eligibility criteria and strictly in
accordance with law:
3.0. In response to the notice issued by this Court,
respondent no.3 Election Officer has filed reply and same
indicates that the State Election Commission has declared
scheduled for preparing of voters list for the Panchayat
office which is as under:
Sr.No. Particulars Date
1. Time limit for preparing the voters list 6.10.2021
of Gram Panchayat as per the last
position and eligibility of final enroll
list of Legislative Assembly dated
1.1.2021
2. Voters list with paragraph publication 11.10.2021
date.
3. Final date to represent the claim/ 18.10.2021
application under rule-3(a) and rule 3-
(b).
4. Verification and final decision on the 25.10.2021
application under rule-3C(2).
5 Publication of final voters list. 28.10.2021
Moreover, the election is to take place on 19.12.2021
and the Notification for which, was published on
22.11.2021, which reads as under:
Election Programme
Sr.No. Details Date
1. Date of declaration of election 22.11.2021
C/SCA/17666/2021 ORDER DATED: 14/12/2021
2 Election Notice/Date of issuance of 29.11.2021
circular
3 Last date for filing the nomination 4.12.2021
4 Date for verification of the nomination 6.12.2021
5 Last date for withdrawing the 7.12.2021
nomination
6 Date of Election and time 19.12.2021
(Sunday)
From 07:00
a.m. to 06:00
p.m.
7 Date of re-election (if required) 20.12.2021
8 Date of counting the votes 21.12.2021
9 Date of completion of election process 24.12.2021
4.0. The Division Bench of this Court in the case of
Dineshbhai Chhaganbhai Gamit vs. Gujarat State Election
Commission reported in 2021(2) GLH 281, following the
judgment of the Hon'ble Supreme Court in the case of
Anugrah Narain Singh and Another vs. State of UP and Ors
reported in 1996(6) SCC 303, 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-
C/SCA/17666/2021 ORDER DATED: 14/12/2021
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
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.
(5) The High Court should not intervene even
when the elections are imminent. In other words,
the election is well underway."
C/SCA/17666/2021 ORDER DATED: 14/12/2021
5.0. As stated above, as the election is well under way and
as there is alternative remedy available to the petitioner, we
deem it fit not to exercise our jurisdiction under Article 226
of the Constitution of India. However, it is made clear that
all the questions are kept open and the same shall be dealt
with by the authority in accordance with law and without in
any way being influenced by the present order. Present
petition fails and is hereby dismissed. Notice is discharged.
Direct service today is permitted.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
