Gujarat High Court
Vikrambhai Bhagvanbhai Algotar vs State Election Commission on 23 February, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/3793/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3793 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 3794 of 2021
==========================================================
VIKRAMBHAI BHAGVANBHAI ALGOTAR & 6 other(s)
Versus
STATE ELECTION COMMISSION & 35 other(s)
==========================================================
Appearance:
MR C B UPADHYAYA(3508) for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,30,31,32,3
3,34,35,36,4,5,6,7,8,9
MS MANISHA L. SHAH, GOVERNMENT PLEADER WITH MS AISHWARYA
GUPTA, AGP ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP(99) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/02/2021
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. Since the issues raised in both the captioned writapplications are
the same, those were taken up for hearing analogously.
2. For the sake of convenience, the Special Civil Application No.3793
of 2021 is treated as the lead matter.
3. By this writapplication, the writapplicants have prayed for the
following reliefs:
10(A) To admit and allow this application;
C/SCA/3793/2021 ORDER
(B) Quash and set aside the impugned orders dated 15.02.2021 and
16.02.2021 passed by Respondents nos.1 and 2 respectively at
AnnexureA;
(C) Pending the admission, hearing and final disposal of the present
petition, be pleased to stay the implementation, execution and
operation of the impugned orders dated 15.02.2021 and 16.02.2021
at AnnexureA, issued by Respondent No.1 and 2 respectively and may
further be pleased to restrain the respondent nos.5 to 36 from
contesting the elections of Palitana Municipality to be held on
28.02.2021.
(D) Grant exparte ad interim relief in terms of the relief sought for in
clause (hereinabove);
(E) Pass such other and further orders as may be deemed just and
proper, in the facts and circumstances of the present case;
(F) Award costs in favour of the petitioners;
4. This litigation is an offshoot of the judgment and order passed by
this Court in the case of Sarifaben Isubbhai Mahetar & Ors. Vs. State
Election Commission & Ors.; Special Civil Application No.3213 of
2021, decided on 15th February 2021. The Special Civil Application
No.3213 of 2021 came to be disposed of by this Court holding as under:
"3. The facts of this case, as pleaded and referred to above, are
quite gross and disturbing. The letter addressed by the Election Officer,
Palitana Nagarpalika dated 13th February, 2021 to three office bearers
of the political party, AnnexureE to this writ application, is more
disturbing and selfexplanatory. The true English translation of the
same is as under;
"Election Officer,
Palitana Nagarpalika and Deputy
Director of Agriculture, Bhavnagar
Nagarpalika office, Palitana.
Dated : 13.02.2021
To,
(1) Shri Pravinbhai Mulubhai Gadhvi
Add: Charan Niwas, Akheda, Palitana,
C/SCA/3793/2021 ORDER
Dist. Bhavnagar.
(2) Rumibhai Karimbhai Shaikh
Add : Hathiyaghar, Palitana, Dist. Bhavnagar.
(3) Shri Karansang G.Mori
Add : Baharpara, Palitana, Dist. Bhavnagar.
Subject : Palitana Nagarpalika General Election - 2021 Information
seeking the time and details of the mandates FormA and
FormB of the National Congress Party that have been
submitted.
Sir,
It is respectfully submitted on the captioned subject that on 23.01.2021
the State Election Commission, Gandhinagar, has declared the election
programme for conducting the ensuing general election of the Palitana
Nagarpalika scheduled to be held on 28.02.2021.
By your application dated 13.02.2021 @ 18:00 hours, the forms of all the
candidates from the Indian National Congress have been submitted today
on the last date of submission of the forms, i.e. 13.02.2021. However, at
the time of submitting the mandate FormB of the party, some miscreants
looted the mandate FormB, laid an assault and tore off the mandate
FormB.
An information had been sought for from the Indian National Congress
party today, i.e. on 13.02.2021, regarding the time of submission of the
FormA and FormB. The details of the same is as under :
Sr. Mandate Date of Submission Time of Number of
No. FormA or of Mandate FormA Submission Candidates
FormB or FormB of Mandate for FormB
FormA or
FormB
1 FormA 13.02.2021 1459 pm.
2 FormB 13.02.2021 1500 pm. 7 (Seven)
3 FormB 13.02.2021 1515 pm. 4 (Four)
4 FormB 13.02.2021 1705 pm. 32 (Thirty
two)
Sd/
(Gaurav Dave)
Election Officers
Palitana Nagarpalika and
Deputy Director of Agriculture."
4. We have also taken notice of the representation dated 14th
C/SCA/3793/2021 ORDER
February, 2021 addressed to the District Election Officer and District
Collector, Bhavnagar, AnnexureB to this writ application. The same
reads thus;
"(1) Pravinbhai J.Rathod
President, Bhavnagar District
Congress Samiti, at Palitana.
(2) Pravinbhai Mulubhai Gadhvi
Former President, Palitana
Nagarpalika.
Dated : 14.02.2021.
To,
The District Election Officer & District Collector,
Collectorate Office, Kala Nala Road, Bhavnagar.
Subject : To immediately supply the video recording footages of and
around the Palitana Nagarpalika building captured by
the Videographer appointed by you.......Regarding.
We, the undersigned, by this written application, submit that :
On 13.02.2021 at 2:45 p.m., we were, in all 36 candidates from Ward
Nos.1 to 9 of the Palitana Nagarpalika, going to submit our mandates of
the Indian National Congress, at that point of time, when we reached the
main entrance of the Palitana Nagarpalika building, we were attacked by
some miscreants who looted and ran away with the mandates of the
Indian National Congress party.
We followed them to take back the mandates, but they had tore the
mandates at the car parked near Rajdeep Pan located at the entrance of
the Palitana Nagarpalika building and ran away.
For the said incident, a complaint came to be lodged before the Palitana
Town Police Station on 13.02.2021 at 21:15 hours.
As we intend to file a complaint before the Chief Election Commissioner,
Gujarat State, as well as before the District Election Officer, Bhavnagar,
and as we intend to seek legal proceedings at higher level into this serious
incident, we request you to pass an order immediately, in the interest of
justice, to supply us the video recording footages of and around the
Palitana Nagarpalika building captured by the Videographer appointed by
you, on 13.02.2021 between 2 O'clock and 4 O'clock, as the same is
required to be produced before the authorities concerned as an evidence.
We undertake to pay the amount that may be required for supplying the
video recording footages of and around the Palitana Nagarpalika building
captured by the Videographer appointed by you.
C/SCA/3793/2021 ORDER
(1) Sd/
(Pravinbhai J.Rathod)
(2) Sd/
(Pravinbhai Mulubhai Gadhvi)
Copy forwarded with respect to :
(1) The State Election Commissioner.
(2) The President, Gujarat State Congress.
(3) The Opposition Leader (Gujarat Legislative Assembly)"
5. We have also taken notice of the representation dated 14th
February, 2021 addressed to the DIG, Bhavnagar Range, Bhavnagar,
which reads thus;
"(1) Pravinbhai J.Rathod
President, Bhavnagar District
Congress Samiti, at Palitana.
(2) Pravinbhai Mulubhai Gadhvi
Former President, Palitana
Nagarpalika.
Dated : 14.02.2021.
To,
The Deputy Inspector General of Police
(Bhavnagar Range)
D.S.P. Office Compound,
Navapara, Bhavnagar.
Subject : To immediately supply the CCTV footages of and around the
Palitana Nagarpalika building as well as of the private
shops...... Regarding.
We, the undersigned, by this written application, submit that :
On 13.02.2021 at 2:45 p.m., in all 36 candidates from Ward Nos.1 to 9
of the Palitana Nagarpalika were going to submit the mandates of the
Indian National Congress party, at that point of time, when we reached
the main stair of the Palitana Nagarpalika building, we were attacked by
some miscreants who looted and ran away with the mandates of the
Indian National Congress party.
We followed them to take back the mandates, but they had tore the
mandates at the car parked near Rajdeep Pan shop located at the entrance
of the Palitana Nagarpalika building and ran away.
As the said incident happened within your jurisdiction, a complaint came
to be lodged before the Palitana Town Police Station on 13.02.2021 at
21:15 hours.
C/SCA/3793/2021 ORDER
As we intend to file a complaint before the Chief Election Commissioner,
Gujarat State, as well as before the District Election Officer, Bhavnagar,
and as we intend to seek legal proceedings at higher level into this serious
incident, we request you to pass an order immediately in the interest of
justice, to supply us the CCTV footages of and around the Palitana
Nagarpalika building as well as the CCTV footages of the private shops
recorded on dated 13.02.2021 between 2 O'clock and 4 O'clock, as the
same is required to be produced before the authorities concerned as an
evidence.
We undertake to pay the amount that may be required for supplying the
CCTV footages.
(1) Sd/
(Pravinbhai J.Rathod)
(2) Sd/
(Pravinbhai Mulubhai Gadhvi)
Copy forwarded with respect to :
(1) The State Election Commissioner.
(2) The President, Gujarat State Congress.
(3) The Opposition Leader (Gujarat Legislative Assembly)
(4) The Home Secretary.
(5) The Director General of Police, Gujarat State.
(6) The District Superintendent of Police, Bhavnagar."
6. We have heard Mr. Anand Yagnik, the learned counsel
appearing for the writ applicants, Mr. Mihir Joshi, the learned senior
counsel assisted by Ms. Roopal Patel, the learned counsel appearing for
the State Election Commission and Ms. Manisha Luvkumar Shah, the
learned Government Pleader appearing for the Staterespondents.
7. Having regard to the urgency in the matter, Mr. Yagnik, the
learned counsel appearing for the writ applicants sought permission of
this Court to get this writ application circulated Yesterday in the late
evening. Mr. Yagnik had to make frantic efforts to get the matter
circulated at the earliest as time was running against his clients. We
are informed that a request was made to the Hon'ble the Chief Justice
for urgent circulation, and that is how the matter has come up today
before this Court.
8. We started hearing this matter at 11:30 A.M. today. Mr.
Yagnik, the learned counsel appearing for the writ applicants, raised
manifold contentions in support of his case, and at the same time,
various submissions were made on behalf of the State Election
Commission as well as the StateRespondents. In the course of the
hearing of this matter, we thought fit to ask the Returning Officer to
join the Video Conference. We also had some discussion with Mr. A.A.
C/SCA/3793/2021 ORDER
Ramanuj, Joint Commissioner, State Election Commission. Incidentally,
the State Election Commissioner Mr. Sanjay Prasad, was also on the
Video Conference assisting Mr. Mihir Joshi, but in a different matter.
We ceased the opportunity to put few questions to Mr. Sanjay Prasad as
regards the unruly incident that took place on 13 th February, 2021 and
the steps taken by him as the Election Commissioner. The matter was,
thereafter, taken up in the post lunch session.
9. The entire election process is manned by a competent agency
called the "Election Commission". Article 324 of the Constitution of
India postulates the superintendence, direction and control of election to
be vested in an "Election Commission". Clause (1) of Arlicle 324
specially deals with the power of superintendence, direction and control
of the preparation of the electoral rolls for, and the conduct of, all
elections to Parliament and to the Legislature of every State arid of
elections to the offices of President and VicePresident held under this
Constitution shall be vested in a Commission referred to in the
Constitution as "Election Commission."
10. Clause (6) of Article 324 provides that the President or the
Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a
Regional Commissioner such staff as may be necessary for the discharge
of the functions conferred on the Election Commission by Clause (I).
11. Thus, Article 324 of the Constitution of India makes provisions
for a Centralised Election machinery. The Election Commission is
empowered to issue all necessary directions for the purpose of
conducting smooth, free and fair elections.
12. Article 329(b) of the Constitution of India postulates the bar to
interference by Courts in electoral matters. The embargo imposed under
Article 329 barring interference and the power of Election Commission
under Article 324 have been extensively considered by the Supreme
Court in N. P. Ponnuswami v. The Returning Officer, 1952 AIR 64
and Mohinder Singh Gill v. The Chief Election Commission, 1978
AIR 851.
13. Dealing with the powers of the Election Commission under
Article 324, the Supreme Court in the decision cited supra, has held :
"Functions as referred to in Article 324 (6) include powers as well as
duties. It is incomprehensible that a person or body can discharge any
functions without exercising powers. Powers and duties are integrated
with function. The Chief Election Commissioner has to pass appropriate
orders on receipt of reports from the returning officer with regard to any
situation arising in the course of an election and power cannot be denied
to him to pass appropriate orders. Moreover, the power has to be exercised
C/SCA/3793/2021 ORDER
with promptitude. Whether an order passed in wrong, arbitrary or is
otherwise invalid, relates to the mode of exercising the power and does not
touch upon the existence of the power in him if it is there either under the
Representation of the People Act or the rules made in that behalf or under
Article 324(1).
The Commission is entitled to exercise certain powers under Article 324
itself or its own right, in an area not covered by Representation of the
People Act and the rules... It is true that in exercise of powers under Article
324(1) the Election Commission cannot do something impinging upon the
power of the President in making the notification under Section 14 of the
Representation of the People Act. But after the notification has been issued
by the President, the entire electoral process is in the charge of the Election
Commission and the Commission is exclusively responsible for the conduct
of the election without reference to any outside agency. There is no
limitation in that where the law made under Article 327 or the relevant
rules made thereunder do not provide for the mechanism of dealing with a
certain extraordinary situation, the hands of the Election Commission are
tied and it cannot independently decide for itself what to do in a matter
relating to an election. The Election Commission is competent in an
appropriate case to order repoll of an entire constituency where
necessary. It will be an exercise of power within the ambit of its functions
under Article 324."
14. The authoritative pronouncements of the Apex Court referred to
above undoubtedly, lay down that the Election Commission is
sufficiently clothed with the power though not vested under the Act, but
even by invoking the plenary powers conferred on it under Article 324
and issue appropriate directions for the conduct of free and fair elections
in a given case.
15. Here is a case of an unruly event which occurred in the office
premises of the Returning Officer itself. Few hooligans forcefully
entered into the premises of the Returning Officer and created a ruckus.
In the words of the Returning Officer himself, there was looting of the
mandate forms, assault and a systematic attack on 36 writ applicants
herein, who wanted to file their nomination forms along with the
mandate of their political party. The object of providing a State
Election Machinery is only in such direction to ensure purity in the
electoral process. In a contingency of this nature, could it be said that
the State Election Commission is helpless and has to be a silent
spectator? To our mind, the State Election Commission is not without
power to remedy the situation. Article 324(1) of the Constitution of
India confers power of superintendence, direction and control on the
Election Commission The Election Commission is not only entitled but
duty bound to exercise certain powers under Article 324 itself on its
own right, in an area not covered by the Representation of the People
Act and the Rules or any other enactment or Rules framed therein.
Situations may arise which enacted law may not have provided for. The
C/SCA/3793/2021 ORDER
Legislators are not prophets but pragmatists. So it is that the
Constitution has made comprehensive provision in Article 324 to take
care of situations like the one on hand. That power itself has to be
exercised not mindlessly nor mala fide, not arbitrarily nor with
partiality but in keeping with the guidelines of the rule of law and not
stultifying the State Notification nor any existing legislation. Article
324 of the Constitution, to our mind, operates in areas left unoccupied
by the legislation and the words "superintendence, direction and
control" as well as "conduct of all elections" are the broadest terms.
When a high functionary like the Election Commissioner is vested with
wide powers, the law expects him to act fairly, promptly and legally.
Article 324 is geared to the accomplishment of free and fair elections
expeditiously. Moreover, the discretion vested in a high functionary
may be reasonably trusted to be used properly not perversely. If it is
misused, certainly the Court has the power to strike down the act. [See
N. Kristappa vs. Chief Election Commission, 1995 (1) ALT 121]
16. It is relevant to extract the words of Lord Denning, which are
instructive:
"Law does not stand still. It moves continually. Once this is recognised,
then the task of the Judge is put on a higher plane. He must consciously
seek to mould the law so as to serve the needs of the time, must not be a
mere mechanic, a mere working mason, laying brick on brick, without
thought to the overall design. He must be an architectthinking of the
structure as a whole building for society a system of law which is strong,
durable and just. It is on his work that civilised society itself depends."
17. The words of Lord Denning are so inspiring and pragmatic. The
Courts are to be pragmatic in adjudicating a dispute by consciously
seeking to mould the law so as to serve the needs of the time.
18. The facts and circumstances of the case on record undoubtedly
disclose that the purity of the election process was irretrievably sullied
on 13th February, 2021 at 3:00 O"clock in the office of the Returning
Officer.
19. Mr. Mihir Joshi, the learned senior counsel appearing for the
State Election Commission, submitted that having regard to the peculiar
facts and circumstances of the case, more particularly, the fact that the
nomination forms duly filled up by all the writ applicants were already
accepted by the Returning Officer in time, the State Election Commission
shall ensure that their nominations are not rejected only on the ground
that they were not in a position to produce the mandate of the political
party in time, i.e, before 3:00 O' clock on 13th February, 2021 on
account of the unruly event. According to Mr. Joshi, the production of
the mandate of a particular party is a part of the guidelines, and in
extreme cases like the one on hand, the same can be waived or relaxed
to a certain extent in the larger interest of justice. Mr. Joshi, the
C/SCA/3793/2021 ORDER
learned senior counsel wants the writ applicants to file a representation
at the earliest addressed to the State Election Commission as regards the
subject matter of this writ application with a request that their
nominations for the ensuing Palitana Nagarpalika Election be accepted.
20. Mr. Yagnik submits that as he has the signatures of all the 36
writ applicants on his Vakalatnama, he would file the representation
under his signature as a legal representative of the writ applicants
today itself before 7:30 P.M..
21. Mr. Joshi, the learned senior counsel submits that once the
representation is received by the State Election Commission, the
necessary orders/instructions shall be issued to the concerned authority
to accept the nomination forms so that the writ applicants are able to
contest the ensuing Palitana Nagarpalika Election.
22. We appreciate the concern shown by the State Election
Commissioner for the purpose of maintaining the rule of law as
embodied under Article 324 of the Constitution. Better late than never.
We strongly condemn the unruly incident that occurred within the
premises of the Returning Officer on the fateful day and date. We are
informed that a first information report has also been registered at the
Palitana Town Police Station for the offence punishable under Sections
143, 147, 352 read with Section 34 of the IPC and Section 136(1)(a)
of the Representative of Peoples Act, 1950 against ten hooligans
(accused persons) named in the FIR and other unidentified individuals.
23. In view of the aforesaid statement being made by the learned
senior counsel appearing on behalf of the State Election Commission, we
need not now adjudicate this writ application on merits.
24. We dispose of this writ application in the aforesaid terms."
5. It appears that pursuant to the judgment and order passed by this
Court referred to above, the orders impugned in the present two writ
applications dated 15/02/2021 and 16/02/2021 respectively
Annexures'A' and 'B' respectively came to be passed.
6. The grievance of the writapplicants is that pursuant to the two
impugned orders, the candidates whose nomination forms were earlier
rejected should not be permitted to contest the election to the Palitana
Municipality.
C/SCA/3793/2021 ORDER
7. We have heard Mr. Chitrajeet Upadhyay, the learned counsel
appearing for the writapplicants.
8. Let Rule be issued to the respondents returnable on 6th April,
2021.
9. Mr. Chitrajeet Upadhyay, the learned counsel vehemently
submitted that interimrelief be granted by staying the operation of the
two impugned orders. If we grant such relief, it will virtually set at
naught the judgment of this Court in the case of Sarifaben Isubbhai
Mahetar (Supra). Besides the same, grant of such relief will virtually
amount to granting the final relief as prayed for in the present writ
application.
10. Ordinarily, in the matters of the present type, the Court should
consider the following;
(I) prima facie case;
(II) balance of convenience
(III) irreparable loss; and
(IV) whether the writ application has been filed by the writ
applicant with clean hands.
11. In the aforesaid context, we may refer to the observations made
by the Supreme Court in the case of Deorarj vs.State of Maharashtra,
(2004) 4 SCC 697. The same are as under;
"Situations emerge where the granting of an interim relief would
tantamount to granting the final relief itself.
And then there may be converse cases where withholding of an interim
relief would tantamount to dismissal of main petition itself; for, by the
time the main matter comes up for hearing there would be nothing left
to be allowed as relief to the petitioner though all the findings may be in
his favour. In such cases the availability of a very strong prima facie
C/SCA/3793/2021 ORDER
case of a standard much higher than just prima facie case, the
considerations of balance of convenience and irreparable injury
forcefully tilting the balance of case totally in favour of the applicant
may persuade the Court to grant an interim relief though it amounts to
granting the final relief itself. Of course, such would be rare and
exceptional cases. The Court would grant such an interim relief only if
satisfied that withholding of it would prick the conscience of the Court
and do violence to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the Court would
not be able to vindicate the cause of justice. Obviously such would be
rare cases accompanied by compelling circumstances, where the injury
complained of is immediate and pressing and would cause extreme
hardship. The conduct of the parties shall also have to be seen and the
Court may put the parties on such terms as may be prudent."
12. Applying the aforesaid principles of law to the case on hand, we
are not persuaded to grant the interim relief, as prayed for.
13. Therefore, in our view, this is a fit case where we should decline
to grant any interim relief. The interim relief is, accordingly, declined.
(J. B. PARDIWALA, J)
(ILESH J. VORA,J)
A. B. VAGHELA
