Gujarat High Court
Baraiya Bhudarbhai Bachubhai vs The State Election Commissioner on 17 February, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/3380/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3380 of 2021
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BARAIYA BHUDARBHAI BACHUBHAI
Versus
THE STATE ELECTION COMMISSIONER
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2,3,4
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No.
1,2,3,4
for the Respondent(s) No. 2
MS AISHWARYA GUPTA, AGP (99) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 17/02/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. We have heard Mr. B.M.Mangukiya, the learned
counsel appearing for the writ applicants, Mr.
Mihir Joshi, the learned Senior Counsel assisted
by Ms. Roopal R. Patel, the learned counsel
appearing for the State Election Commission and
Ms.Manisha Lavkumar Shah, the learned Government
Pleader assisted by Ms. Aishwarya Gupta, the
learned AGP appearing for the State Respondents.
2. In the light of the provisions contained in
Article 243O(b) of the Constitution of India,
which provides that no election to any Panchayat
shall be called in question except by an
election petition presented to such authority
and in such manner as is provided for by or
C/SCA/3380/2021 ORDER
under any law made by the legislature of a
State, we do not consider that it is permissible
to interfere with the acceptance or rejection of
the nomination papers for the ensuing
municipalities election/corporation election.
The election process commences from the issuance
of the calender of events till the results of
the election are declared. As the acceptance or
rejection of the nomination is one of the stages
in the process of election, the validity of it
can only be challenged in election petition and
not under Article226 of the Constitution of
India. There was a controversy earlier to the
introduction of Part IX and Article 243O of
the Constitution, as to whether the principles
underlying Article 329 of the Constitution could
be extended to the matters relating to the
elections to the various local bodies. But,
ultimately now the controversy is put an end to
by the introduction of the Article 243O(b) of
the Constitution of India. Hence, we are of the
view that the jurisdiction under Article226 of
the Constitution of India cannot be exercised as
against the order of acceptance or rejection of
the nomination paper or in respect of any of the
stages of the election process.
3. In taking the aforesaid view, we are fortified
by an order passed by a coordinate bench of
this Court in the case of Parshottam Dayabhai
Yadav Vs. Election Commission of India & Anrs.;
C/SCA/3380/2021 ORDER
Special Civil Application No.16166 of 2012;
decided on 4th December, 2012. We quote the
relevant observations:
"2. The petitioner wanted to contest the election from
legislative constituency No.79 - Jamnagar South. His
nomination paper has been rejected and he has challenged
the rejection of his nomination papers.
3. Mr.Preman Rachh, learned advocate for the
petitioner has placed reliance on the Apex Court
decision - Pothula Rama Rao Vs.Pendyala Venkata Krishna
Rao & Ors. reported in AIR 2007 SC 2924. On the strength
of this judgment, he has urged that his nomination paper
has wrongly been rejected as it was not signed by 10
proposers.
4. On the other hand, Mr.Percy Kavina, learned senior
counsel assisted by Mr.Biren Vaishnav, learned advocate
for the respondent No.1 has urged that the remedy is not
available to the petitioner, and against the rejection
of nomination paper, the remedy available to the
petitioner is filing a election petition. He has placed
reliance on an Apex Court decision - Manda Jaganath Vs.
K.S.Rathnam & Ors. reported in AIR 2004 SC 3600.
5. We are in agreement with the view taken by the
Hon'ble Apex Court in Manda Jaganath's case (supra). The
proper remedy available to the petitioner is to
challenge his rejection of nomination paper after the
elections are over by filing election petition. This
petition, therefore, is dismissed on the ground of
alternative remedy of election petition."
4. In view of the aforesaid, this writ application
fails and is hereby rejected.
(J. B. PARDIWALA, J)
(ILESH J. VORA,J)
SUCHIT
