Gujarat High Court
Sureshbhai Dalabhai Rohit vs State Of Gujarat on 16 December, 2021
Bench: R.M.Chhaya
C/SCA/18980/2021 ORDER DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18980 of 2021
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SURESHBHAI DALABHAI ROHIT
Versus
STATE OF GUJARAT
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
Ms. Jyoti Bhatt, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/12/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1.0. Heard Mr. Gajendra Baghel, learned counsel for the
petitioner, Ms. Jyoti Bhatt, learned Assistant Government
Pleader for the respondent State.
2.0. By this petition under Article 226 of the Constitution
of India, the petitioner has prayed as under:
"A. Your Lordships be pleased to issue appropriate
writ, order or direction and be pleased to quash
and set aside the Notification dated 16.10.2021,
schedule-2 qua Simarad issued by the Office of
State election commission and Collector, Anand
exercising power in view of the Section 51 of the
Gujarat Panchayat Act, 1993 with regard to
keeping reserve seat of Sarpanch for Schedule
Tribe Lady candidate for Simarada Gram
Panchayat, issued by the respondent no.3 and
reserve the same to the candidate of Scheduled
C/SCA/18980/2021 ORDER DATED: 16/12/2021
Cast, in the interest of justice:
B. Your Lordships be pleased to issue to restrain
the respondents from executing the notification
dated 16.10.2021, issued by the Officer of State
election commission and Collector, Anand
exercising power in view of the Section 51 of the
Gujarat Panchayat Act, 1993 with regard to
keeping reserve seat of Sarpanch, for Schedule
Tribe lady candidate, qua schedule -2 of the
notification, pending the admission hearing and
final disposal of this petition;
3.0. The Notification for election to the election of
Samarada Gram Panchayat is already published and
various stages have already commenced and hence, election
is well under way. The actual voting is scheduled on
19.12.2021. It clearly appears from the prayers that
Notification dated 16.10.2021 is challenged by the petitioner
by filing this petition on 13.12.2021 for election that is to be
held on 19.12.2021. We have given charge which shows that
even on merits the allotment of seats is proper and as per
Gujarat Village Panchayats Election of Sarpanch (Manner of
Allotment of Reserved Offices of Sarpanch By Rotation)
Rules, 1994.
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
C/SCA/18980/2021 ORDER DATED: 16/12/2021
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-
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
C/SCA/18980/2021 ORDER DATED: 16/12/2021
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."
5.0. As stated above, as the election is well under way, 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.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
KAUSHIK J. RATHOD
