Gujarat High Court
Ganeshbhai Narsinghbhai Vaghela vs State Election Commission on 16 December, 2021
Bench: R.M.Chhaya
C/SCA/17955/2021 ORDER DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17955 of 2021
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GANESHBHAI NARSINGHBHAI VAGHELA
Versus
STATE ELECTION COMMISSION
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Appearance:
MR DHARMESH C GURJAR(5170) for the Petitioner(s) No. 1,2
REKHABEN C GURJAR(7360) for the Petitioner(s) No. 1,2
.... for the Respondent(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 2,3,4
MS DIMPLE A THAKER(6838) 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. Heard Mr. Dharmesh C. Gurjar, learned advocate
for the petitioner and Ms. Jyoti Bhatt, learned Asst.
Government Pleader for the State authorities and Ms.
Dimple Thaker, learned advocate for the State
Election Commission.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for
following reliefs:-
"(A) Your Lordships may be pleased to issue an
appropriate writ, order or direction, direction
the respondents Authorities to re-issue/modify
the Schedule-I for Shahpur Gram Panchayat
election 2021, Ta: Gandhinagar, Dist Gandhinagar
as per the roster and rotation to allot for the
Scheduled Caste candidate in the larger interest
of justice, as per the Gujarat Gram Panchayat
C/SCA/17955/2021 ORDER DATED: 16/12/2021
Election, (The Method of simultaneous allotment
of reserved seats)Rules, 1994 issued by the
Panchayat, Gram Gruth Nirman and Gram Vikas
Department vide notice No. KP-1994-211-ELC-1094-
48-G, dated 08/09/1994 in the larger interest of
justice.
(B) Your Lordships may be pleased to issue an
appropriate writ, order or direction, directing
to declare the Shahpur 'Gram Panchayat, Ta:
Gandhinagar, Dist. Gandhinagar, reservation Seat
for Scheduled Caste candidate for upcoming Gram
Panchayat Election held on 19/12/2021 at Shahpur
Gram Panchayat, Gandhinagar, in the larger
interest of justice."
3. The election programme of the elections of
panchayat in question is as under:-
Election Programme
Sr. Details Date
No.
1 Date of declaration of election 22.11.2021
2 Date of declaration of election 29.11.2021
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
C/SCA/17955/2021 ORDER DATED: 16/12/2021
process
5. 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
C/SCA/17955/2021 ORDER DATED: 16/12/2021
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.
C/SCA/17955/2021 ORDER DATED: 16/12/2021
(5) The High Court should not intervene
even when the elections are imminent.
In other words, the election is well
underway."
6. Though the petition may be maintainable under
Article 226 of the Constitution of India, considering
the controversy involved, the petitioner has an
efficacious alternative remedy by way of filing a
substantive election petition. To entertain the
petition at this stage would amount to stalling the
election process.
7. Even while parting, it has been observed by us
in our judgment dated 08.10.2021 in SCA No. 15959 of
2021 as under -
"29. We hasten to add that the State Government
and its authorities ought to have given reply to
the applications filed by the petitioners and
appraise them about the data as regards the
population of Scheduled Castes, Scheduled Tribes
and SEBC and even the rotation charts. We firmly
believe that if that exercise would have been
undertaken, this litigation could have been
avoided. The petitions are dismissed on merits
as well. Notices discharged in each petitions.
However, there shall be no order as to costs."
The same shall be adhered to by the State
Government in all cases.
8. 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 v. Gujarat State
Election Commission (supra), we deem it fit not to
C/SCA/17955/2021 ORDER DATED: 16/12/2021
exercise jurisdiction. The petition is, therefore,
not entertained and is disposed of accordingly. D.S.
permitted today.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
